, 


|<-^K£  g  UQ— 

I-TJOJ5  3M^n 

T!  f— V  v  °  •*-  JP^  I 

***T    >«X  ?3  c?  ««sr 


^l  LIBRARY^ 


,^OF-CAIIFO%        ^OF-CAllFOli 

^•*      >^-^   ^         ^-»      s^*. 


^       ^l-LIBRARY( 


^lllBRARYi 

•^  ,«-3 


k^\\EUNIVER%        ^lOSANGELfj^ 
<^ 


j.ClF  CAllFOff* 


.1.0F-CAUFOI 
I 


CAUSES 


C  E  L  E  B  R  E  S 


VOL.  IV. 


TRIAL 


OF 


AARON    BURR 


FOR 


TREASON 


COUNSELLOR    AT    LAW 


VOL.   I 


JERSEY     CITY: 
FREDERICK    D.     LINN    &    CO., 

1879. 


PREFACE. 


AMONG  all  the  deeds  of  wonderful  projected  adventures 
devised  by  an  astute,  sagacious,  and  practical  mind,  none 
that  the  world  had  heard  of  was,  perhaps,  more  strange 
and  romantic  than  that  undertaken  by  Aaron  Burr,  for  the 
conquest  of  Mexico.  Aaron  Burr  was  quite  an  unusual 
type  of  adventurer,  having  been  Vice-President  of  the 
United  States,  used  to  the  forms  of  government,  and  distin- 
guished by  remarkable  talents,  but  he  was  possessed  of  a 
restless  nature  and  daring  ambition.  With  a  mind  tor- 
tured by  remorse  for  his  unfortunate  duel  with  Hamilton, 
sickened  by  discontentment  in  political  preferment,  and 
disgusted  with  the  pacific  measures  of  Jefferson,  he  seems 
\l  to  have  determined  to  direct  his  thoughts  into  scenes  of 
outward  conflict,  and  to  bury  the  disquietudes  which  were 
rending  his  soul  by  plunging  into  deeds  of  romantic1  and 
wondrous  magnitude.  A  thousand  miles  beyond  the  Mis- 
sissippi lay  a  vast  and  wealthy  province  of  Spain,  governed 
by  tyrants  whom  the  people  hated,  and  the  riches  of  that 
province  had  long  been  the  theme  of  travelers.  The 
mines  were  inexhaustible, -and  had  flooded  Europe  with 

Q  gold.  The  capitol  was  said  to  be  blazoned  with  jewels, 
and  men  dreamed  of  that  magnificent  city  as  Aladdin 

</x  dreamed  of  his  palaces  or  Columbus  of  Carthay.  A  bold 
adventurer  could  possess  himself  of  the  empire,  and  the 
time  was  most  favorable  for  the  enterprise.  The  priest- 
hood was  disaffected,  and  exercising  then,  as  now,  a  para- 
V  mount  influence  over  weak  and  superstitious  Mexicans, 
would  gladly  lend  its  aid  to  a  conqueror.  More  than  that, 
the  United  States  were  supposed  to  be  on  the  eve  of  a 


iv  PREFACE. 

Spanish  war,  and  any  one  who  could  seize  on  the  glitter- 
ing prize  might  realize  in  this  new  world  a  dream  as  great 
as  that  of  Napoleon  in  the  old.  It  was  with  such  feelings 
that  ex-Vice-President  Aaron  Burr,  in  the  spring  of  1805, 
after  the  closing  of  the  session  of  Congress,  set  out  on  a 
journey  through  the  Western  States,  having  in  his  mind  a 
threefold  object.  He  wanted,  first,  to  ascertain  the  senti- 
ment of  the  people  of  the  West  upon  the  subject  of  a 
separation  from  the  Atlantic  states;  secondly,  to  enlist  re- 
cruits, and  make  arrangements  for  a  private  expedition 
against  Mexico  and  the  Spanish  provinces  ;  and  thirdly,  in 
the  event  of  failure  in  their  measures,  to  purchase  a  tract 
of  land  on  the  Washita  river,  in  the  territory  of  Louisiana, 
where  he  contemplated  the  establishment  of  a  colony  of 
intelligent  and  wealthy  individuals,  where  he  might  rear 
around, him  a  society  remarkable  for  its  refinement  in  civil 
and  social  life.  Knowing  the  advantages  of  wealth  and 
influence  in  such  an  undertaking,  Burr  endeavored  to  pro- 
cure the  co-operation  of  the  most  conspicuous  characters  in 
the  country.  Some  previous  correspondence  had  taken 
place  between  him  and  General  Wilkinson,  who  commanded 
the  Western  forces  at  that  time,  temporarily,  at  Fort  Massac, 
at  the  mouth  of  the  Ohio.  Burr  wished  to  ascertain  with 
what  confidence  he  could  rely  on  the  aid  of  that  officer  and 
his  men,  in  the  event  of  an  expedition  to  Mexico.  The 
result  of  that  interview  has  never  been  definitely  known, 
but  it  is  strongly  suspected  that  Wilkinson  assured  him  of 
his  support.  What  casts  a  remarkable  air  of  mystery  over 
the  whole  affair,  is  that  for  the  purpose  of  correspondence 
they  adopted  three  different  ciphers,  and  it  is  still  more 
strange  as  almost  foreshadowing  Burr's  daring  design  long 
before,  that  this  correspondence  commenced  about  the  year 
1800  or  1801,  near  the  period  when  Burr  ascended  the  chair 
of  the  Vice-Presidency.  It  is  also  a  significent  fact  that 
when  the  ex-Vice-President  arrived  in  the  West,  the  Gen- 
eral furnished  him  with  an  elegant  barge,  sails,  colors,  and 
ten  oars,  with  a  sergeant  and  ten  able  hands,  to  prosecute 


PREFACE.  v 

his  journey.  It  was  now  that  Burr  became  acquainted  with 
a  gentleman  whom  he  contrived  to  inveigle  into  this  scheme 
by  glowing  descriptions  of  the  prize,  and  false  assurances 
that  he  knew  the  views^of  the  administration,  and  that  the 
expulsion  of  the  Spaniards  from  the  American  territory 
then  violated  by  them,  or  even  an  invasion  of  Mexico,  would 
be  pleasing  to  Mr.  Jefferson,  if  either  could  be  effected 
without  a  war  against  Spain,  which  was  now  prevented  by 
parsimony,  on  the  one  hand,  and  dread  of  France  on  the 
other.  This  remarkable  future  colleague,  Mr.  Herman 
Blannerhassett,  was  an  Irish  gentleman  of  high  connec- 
tion, and  a  member  of  the  Irish  Bar.  In  company  with 
one  of  his  companions  he  had  taken  a  tour  on  the  conti- 
nent, and  had  visited  France  when  she  was  rocked  by  the 
whirlwind  of  revolution,  and  the  established  despotism  of 
her  military  monarchs  had  been  crumbled  to  atoms.  There 
were  at  this  time  a  large  number  of  young  Irishmen  in 
France,  many  of  whom  entered  into  the  spirit  of  the  revo- 
lution with  great  zest,  and  endeavored  to  enlist  the  sympa- 
thies of  their  fellow-countrymen  against  the  oppression  of 
England.  Two  well-educated  lawyers,  John  and  Henry 
Sheares,  were  executed  for  treason  on  their  return  from  the 
taking  of  the  Bastile,  and  Blannerhassett,  seeing  the  danger 
and  inconvenience  of  his  situation,  and  having  lately  mar- 
ried a  young,  intelligent,  and  beautiful  woman,  disposed  of 
his  lands  to  a  relative,  and  set  sail  to  this  country.  In  the 
year  1798  he  eventually  purchased  an  island  named  Backus 
Island,  on  the  Ohio  river,  in  Western  Virginia,  and  here 
surrounded  himself  with  so  much  elegance  and  refinement 
as  to  cause  this  island  home  to  be  known  by  the  title  of^ 
the  American  Alhambra.  It  was  here  that  Burr,  with  elo- 
quence of  expression  and  power  of  imagination,  infused 
into  him  a  desire  to  join  his  daring  expedition;  and  imme- 
diately afterwards  Burr  commenced  active  preparations. 
At  length  President  Jefferson  issued  a  proclamation  warn- 
ing and  enjoining  all  engaged  in  the  enterprise  to  with- 
draw. 


vi  PREFACE. 

The  proofs  of  General  Wilkinson's  complicity  with  Burr 
are  very  numerous.  He  writes  to  General  Adair:  "Burr 
understood  your  merits  and  reckons  on  you.  Prepare  to 
visit  me,  and  I  will  tell  you  all.  W"e  must  have  a  peep  into 
the  unknown  world  beyond  me."  Burr's  design  compre- 
hended the  dismemberment  of  the  Western  country,  and 
the  seizure  of  New  Orleans,  in  the  bank  of  which  were 
several  millions  of  dollars  he  intended  to  appropriate; 
and  he  writes  to  Wilkinson  that  he  will  meet  him  at 
Natchez,  "there  to  determine  whether  it  will  be  expedient 
to  seize  or  pass  by  Baton  Rouge."  Being  a  chief  accom- 
plice, Wilkinson  now  made  Burr  his  victim,  communicated 
the  whole  plot  to  President  Jefferson,  and  succeeded  in 
.fastening  upon  Burr  the  entire  treason.  The  President  ac- 
cordingly issued  his  proclamation,  requiring  all  who  had 
been  led  into  the  unlawful  enterprise  to  withdraw  without 
delay,  and  calling  upon  the  vigilance  of  all  military  and 
civil  officers.  By  virtue  of  this  proclamation  the  Virginia 
militia  of  Wood  county  was  called  out,  and  as  they  were 
about  to  invade  Blannerhassett's  island  home,  he  and  his 
wife  fled.  Burr  also  left  the  Cumberland,  where  boats  were 
being  constructed  for  the  expedition,  and,  supplying  him- 
self with  lead,  tomahawks,  &c.,  proceeded  to  Palmyra,  and 
thence  to  Bayou  Pierre.  Arrived  at  the  Western  margin  of 
the  Mississippi  river,  he  found  that  a  proclamation  had  been 
issued  by  Cowles  Mead,  acting  governor,  to  "  the  Burr  con- 
spirators," from  whom  he  also  received  a  courteous  letter. 
To  the  charge  of  designs  inimical  to  the  government,  Burr 
replied  with  a  sneer,  that  any  projects  or  plans  he  might 
have  formed  were  now  completely  frustrated  by  the  con- 
duct of  Wilkinson,  and  the  world  must  pronounce  him  a 
perfidious  villain.  He  was  arrested  and  then  escaped,  and 
disguising  himself  in  a  boatman's  coat  proceeded  on  his 
tour. 

Late  at  night,*  about  the  last  of  February,  Burr,  with  a 

*  For  this  interesting  description  of  the  arrest  of  Aaron  Burr,  we  are  in- 
debted to  Pjckett's  History  of  Alabama. 


companion,  arrived  at  a  small  log  cabin,  in  what  is  now  the 
village  of  Wakefield,  in  Washington  county,  Alabama. 

Without  alighting,  he  called  at  the  door,  and  inquired  oi 
the  inmates  if  Colonel  Hinson  resided  in  the  neighborhood? 
Receiving  for  answer  that  he  did,  they  further  informed 
him  the  house  was  seven  miles  distant. 

Near  midnight,  the  glimmering  of  a  light,  through  the 
distant  trees,  directed  the  travelers  to  the  rude  but  comfort- 
able quarters  of  Colonel  Hinson.  Having  hailed  and 
received  no  answer,  they  dismounted  and  entered  the 
kitchen,  where  the  remaining  embers  in  the  fire-place  were 
soon  kindled  into  a  comfortable  blaze.  Seating  himself 
before  it,  Burr  left  his  companion  to  take  charge  of  the 
horses,  and  had  just  begun  to  feel  comfortable,  when  he 
was  interrupted  by  a  stranger,  who,  he  concluded,  had  rid- 
den till  late  to  reach  desirable  lodgings.  But  in  this  he 
was  mistaken.  The  real  cause  of  his  appearance  at  this 
unseasonable  hour  originated  in  Burr's  mysterious  depart- 
ure from  the  inn.  As  it  afterward  appeared,  Colonel  Nicholas 
Perkins  observed,  by  the  light  of  the  fire,  as  Burr  sat  upon 
his  horse,  that  although  he  was  coarsely  dressed,  yet  he 
possessed  a  countenance  of  unusual  intelligence ;  an  eye 
of  sparkling  brilliancy,  and  a  demeanor  wholly  unsuited 
to  the  garb  he  wore.  The  tidy  boot,  in  particular,  which 
his  vanity  could  not  surrender,  with  his  other  articles  ot 
finer  clothing,  attracted  Perkins's  attention,  and  led  him  10 
conclude  that  the  gentleman  before  him  was  none  other 
than  the  famous  Colonel  Burr,  described  in  the  proclama- 
tion of  the  governor.  Perkins  immediately  started  after 
Theodore  Brightwell,  the  sheriff,  who  occupied  an  adja- 
cent cabin,  and  awakening  him  from  his  slumbers,  hurriedly 
communicated  the  circumstances  of  the  travelers,  appear- 
ance, conversation,  and  departure,  and  requested  him  to 
join  in  pursuit  of  the  parties.  Brightwell  consented,  and 
the  two  mounting  their  horses,  took  the  road  to  Hinson's. 
The  night  was  cold  and  windy,  and  the  moaning  of  the 
*ofty  pines,  along  the  solitary  road,  rendered  their  journey 


viii  PREFACE. 

gloomy  and  inauspicious.  Still  they  pressed  on,  for  the 
object  of  their  pursuit  was  of  no  small  importance  at  that 
particular  time  to  the  minions  of  the  government.  As 
they  arrived  in  sight  of  the  illuminated  dwelling,  Perkins 
recollecting  that  the  travelers  had  seen  him  at  the  tavern, 
declined  entering,  but  sent  Brightwell,  whom  he  requested 
to  return  to  him  at  a  certain  place  in  the  woods  after  he 
had  ascertained  whether  or  not  the  suspicious  individual 
was  Aaron  Burr. 

As  Brightwell  called  at  the  door  his  voice  was  recog- 
nized by  Mrs.  Hinson,  who  was  his  relative,  and  who  until 
now  had  remained  silent  in  another  room,  through  fear  of 
the  strangers,  in  the  absence  of  her  husband. 

She  soon  prepared  something  to  eat  for  her  unknown 
guests.  As  Burr  seated  himself  at  the  table,  he  thanked  her 
in  the  most  courteous  terms  for  her  kindness,  and  apolo- 
gized for  the  trouble  he  had  imposed  upon  her.  His  con- 
versation was  sprightly  and  agreeable,  so  much  so,  indeed, 
that  Mrs.  Hinson  soon  discovered  that  the  gentleman  and 
his  attire  did  not  correspond. 

His  attention  was  often  directed  to  Brightwell,  who  stood 
before  the  fire,  and  at  whom  he  cast  the  keenest  glances, 
evidently  endeavoring  to  read  his  thoughts.  A  momentary 
separation  having  taken  place  during  the  night  between 
Burr  and  his  companion,  at  the  suggestion  of  Brightwell, 
the  latter  was  asked  by  Mrs.  Hinson  if  she  had  the  honor 
of  entertaining  as  her  guest  the  celebrated  Colonel  Burr. 
Fearing  to  make  the  disclosure,  the  man  remained  silent, 
and  shortly  after  left  the  room. 

Early  in  the  morning,  Burr  privately  communicated  to 
Mrs.  Hinson  his  real  name,  and  regretted  the  absence  of 
her  husband. 

For  some  unaccountable  reason,  which  has  never  yet 
been  explained,  Brightwell  neglected  to  return  to  Perkins, 
whom  he  left  highly  excited  and  shivering  in  the  cold. 
Having  remained  at  his  post  until  his  patience  was 
exhausted,  and  supposing  that  Brightwell,  probably  on 


PREFACE.  ix 

account  of  the  fascinations  of  Burr,  or  the  pity  which  had 
seized  him,  in  his  behalf,  had  betrayed  their  plans,  Per- 
kins mounted  his  horse  and  rode  rapidly  to  the  house  ot 
Joseph  Bates,  at  Nannanhubby  Bluff,  to  avoid  the  creek 
which  intervened  on  the  main  route  to  Fort  Stoddart. 

Here  he  was  furnished  with  a  canoe  and  a  negro  to  nav- 
igate it,  and  descending  the  Tombigbee,  arrived  at  the  mil- 
itary station  early  in  the  morning.  The  late  General 
Edmund  P.  Gaines  was  then  lieutenant  in  command.  Per- 
kins briefly  acquainted  him  with  the  particulars  of  the  pre- 
ceding night's  adventure,  and  of  his  suspicions,  which 
although  of  slight  foundation,  had  nevertheless  impressed 
him  with  the  solid  convictions  of  truth. 

Placing  himself  at  the  head  of  a  file  of  mounted  soldiers, 
the  lieutenant  started  in  pursuit,  accompanied  by  Perkins. 
They  shortly  encountered  the  object  of  their  search,  with 
his  traveling  companion  and  the  sheriff,  Brightwell.  The 
parties  having  met,  Lieutenant  Gaines  accosted  one  of  the 
strangers,  remarking  that  he  presumed  he  had  the  honor  of 
addressing  Colonel  Burr. 

"  I  am  a  traveler,"  answered  Burr, "  and  in  a  strange  land, 
and  do  not  recognize  your  right  to  ask  such  a  question." 

"  1  arrest  you,  at  the  instance  of  the  United  States,"  re- 
plied Gaines. 

"  By  what  authority  do  you  arrest  me,  a  stranger  on  the 
highway,  on  my  own  private  business  ?" 

The  lieutenant  then  informed  Burr  that  he  was  an  officer 
of  the  United  States  army,  and  held  in  his  hand  the  procla- 
mation of  the  President,  as  well  as  that  of  the  Governor 
of  the  Mississippi  Territory,  directing  his  arrest. 

Burr's  manner  was  firm,  his  air  majestic,  and  his  lan- 
guage impressive ;  but  the  resolute  young  officer  told  him 
his  mind  was  made  up;  the  prisoner  must  accompany  him 
to  his  quarters,  where  he  would  be  treated  with  all  the  re- 
spect due  the  ex-Vice-President  of  the  United  States,  so 
long  as  he  made  no  attempt  to  escape.  He  was  then  con- 
ducted toward  Fort  Stoddart. 


x  PREFACE. 

Three  weeks  had  passed  away  since  the  arrest  of  the  dis- 
tinguished prisoner,  and  still  the  lieutenant  had  been  unable 
to  convey  him  to  the  seat  of  the  general  government  for 
trial.  The  difficulties  were  great,  and,  for  a  time,  the  tin- 
taking  appeared  impracticable.  At  last  Burr  left  the 
fort,  under  guard,  and  proceeded  in  a  government  boat  up 
the  Alabama  river,  into  the  Fensaw  lake,  accompanied  by 
Lieutenant  Gates,  and  stopped  at  the  house  of  John  Mills. 

When  Burr  fled  from  the  authorities  in  the  Mississippi 
Territory,  he  had  disguised  himself  in  a  boatman's  dress. 
His  pantaloons  were  of  coarse,  copperas-dyed  cloth,  with 
a  roundabout  of  inferior  drab.  His  hat,  a  flapping,  widfc- 
brim  beaver,  had,  in  times  long  past,  been  white,  but  now 
gave  evidence  of  .having  encountered  much  rough  weather. 
Placed  upon  his  fine  horse,  he  bestrode  him  most  elegantly, 
and  flashed  his  large,  dark  eyes,  as  though  he  were  at  the 
head  of  his  New  York  regiment.  On  the  last  of  February 
they  set  out  upon  their  long  and  perilous  journey.  Within 
a  quarter  of  a  mile  from  the  point  of  departure,  the  dread- 
ful massacre  at  Fort  Mimms  occurred  six  years  after. 

Pursuing  the  Indian  path,  which  led  from  the  "  Bigby 
Settlement"  to  Fort  Wilkinson,  on  the  Oconee,  they 
reached  a  point  thirty  miles  distant  the  first  day.  At  night 
the  only  tent  in  the  company  was  pitched  for  the  prisoner, 
who  reposed  himself  upon  his  blankets.  The  country 
abounded  in  immense  pine  forests.  Here  the  ex- Vice- 
President  lay  the  first  night,  before  the  blazing  fire,  which 
threw  a  glare  over  the  dismal  woods. 

To  what  an  extremity  had  he  now  been  reduced  !  In  the 
boundless  wilds  of  Alabama,  under  a  small  and  comfortless 
tent,  amid  the  perils  of  Indian  barbarities,  with  the  cry  of 
the  panther,  answered  by  the  howl  of  the  hungry  wolf, 
ringing  in  his  ears ;  while  the  moaning  of  the  winds 
through  the  tops  of  the  lofty  trees  added  dreariness  to  the 
solitude  of  the  night ;  with  none  with  whom  to  hold  con- 
verse ;  surrounded  by  a  guard  to  whom  he  dared  not 
speak  ;  a  prisoner  of  the  United  States,  for  whose  liberties 


PREFACE.  xi 

he  had  fought,  and  whose  government  he  had  helped  to 
form ;  exiled  from  the  state  of  his  adoption,  whose  statutes 
and  institutions  bore  the  impress  of  his  mind ;  deprive.!  by 
death  of  his  devoted  wife  ;  his  only  child  then  on  the  distant 
coast  of  Carolina ;  his  professional  pursuits  abandoned  and 
his  fortune  swept  away  ;  the  magnificent  scheme  of  the  con- 
quest of  Mexico  uprooted  and  the  fragments  dispersed ;  slan- 
dered and  hunted  down,  from  one  end  of  the  Union  to  the 
other ;  these  were  considerations  sufficient  to  weigh  down  an 
ordinary  individual  and  sink  him  into  an  untimely  grave. 

But  his  was  no  common  mind,  and  the  characteristic  for- 
titude and  determination  which  had  ever  marked  his  course, 
still  sustained  him  in  the  darkest  hour.  In  the  morning 
he  arose  cheerfully  and  pursued  his  journey.  Although 
guarded  with  vigilance,  his  few  wants  were  gratified,  as  far 
as  they  could  be,  and  he  was  treated  with  respect  and  kind- 
ness. The  trail  being  narrow  and  obscure,  Burr  rode  in 
the  middle,  having  a  part  of  the  guard  in  fiont,  while  the 
rest  followed  behind  in  single  file.  The  route  lay  about 
eight  miles  south  of  the  present  city  of  Montgomery,  then 
an  Indian  town,  called  Eacoucharte — meaning  Red  Ground. 

When  Perkins  reached  the  confines  of  South  Carolina, 
he  watched  Burr  more  closely  than  ever ;  for  in  this  state 
lived  the  son-in-law  of  Burr,  Col.  Alston,  a  gentleman  of 
talents,  wealth,  and  influence,  and  afterward  governor  of 
the  state.  Upon  reaching  the  frontiers  of  Georgia,  he 
endeavored  to  convey  the  prisoner  in  by-roads,  to  avoid  the 
towns,  lest  he  should  be  rescued.  The  plan  was  attended 
with  difficulty ;  they  were  often  lost,  the  march  impeded, 
and  the  highway  again  resumed.  Before  entering  the  town 
of  Chester,  in  South  Carolina,  the  party  halted.  Two  men 
were  placed  before  Burr,  two  on  either  side,  and  two 
behind,  and  in  this  manner  they  passed  near  a  tavern  on 
the  street,  where  many  persons  were  standing ;  while  music 
and  dancing  were  heard  in  the  house.  Burr  conceived  it  a 
favorable  opportunity  to  escape,  and  suddenly  dismounting, 
exclaimed: 


xii  PREFACE. 

"I  am  Aaron  Burr,  under  military  arrest,  and  claim  the 
protection  of  the  civil  authorities  !" 

Perkins  leaped  from  his  horse,  with  several  of  his  men, 
and  ordered  him  to  remount. 

"  I  will  not !"  replied  Burr. 

Not  wishing  to  shoot  him,  Perkins  threw  down  his  pis- 
tol, and  being  a  man  of  prodigious  strength,  and  the  pris- 
oner a  small  man,  seized  him  around  the  waist  and  placed 
him  in  his  saddle,  as  though  he  were  a  child.  Thomas 
Malone  caught  the  reins  of  the  bridle,  slipped  them  over 
the  horse's  head,  and  led  him  rapidly  on. 

The  astonished  citizens  had  seen  a  party  enter  their  vil- 
lage with  a  prisoner ;  had  heard  him  appeal  to  them  for  pro- 
tection ;  had  witnessed  the  feat  of  Perkins,  and  the  party  had 
vanished  before  they  had  time  to  recover  from  their  confu- 
sion ;  for  when  Burr  dismounted  the  guards  cocked  their 
pistols,  and  the  people  ran  within  the  piazza  to  escape  from 
danger. 

Burr  was  still  to  some  extent  popular  in  South  Carolina, 
and  any  wavering  or  timidity  on  the  part  of  Perkins  would 
have  lost  him  his  prisoner ;  but  the  celerity  of  his  move- 
ments gave  no  time  for  the  people  to  reflect  before  he  was 
far  in  the  outskirts  of  the  village.  Here  the  guard  halted. 
Burr  was  highly  excited ;  he  was  in  tears !  The  kind- 
hearted  Malone  also  wept  at  seeing  the  uncontrollable 
despondency  of  him  who  hitherto  had  proven  almost  iron- 
hearted.  It  was  the  first  time  that  any  one  had  ever  seen 
Aaron  Burr  unmaned. 

The  guard  being  very  much  alarmed  on  the  subject  ol 
Burr's  rescue,  Malone  and  Henry  advised  the  purchase  ot 
a  carriage.  The  former  took  charge  of  the  guard,  while 
Perkins  returned  and  purchased  a  gig.  The  next  day  Burr 
was  placed  in  a  vehicle,  and  driven  without  further  inci- 
dent to  Frederick sburg,  Virginia.  Here  Perkins  received 
dispatches  from  the  President,  requiring  him  to  convey 
the  prisoner  to  Richmond.  The  guard  took  the  stage  and 
soon  reached  that  place.  The  ladies  of  the  city  vied  with 


PREFACE.  xiii 

each  other  in  contributing  to  the  comfort  of  Burr.  Some 
sent  him  fruit,  some  clothes,  some  wine,  some  one  thing, 
some  another.  Perkins  and  his  men  went  to  Washington, 
were  paid  for  their  services,  and  returned  to  Alabama  by 
way  of  Tennessee. 

After  Colonel  Burr's  conveyance  to  Richmond,  Blan- 
nerhasset,  wishing  to  revisit  his  island  home,  started  from 
Natchez  in  June,  1807,  with  the  intention  of  doing  so.  On 
his  arrival,  however,  at  Lexington,  he  was  taken  into  cus- 
tody for  his  endorsement  of  several  of  Burr's  bills  on  a 
civil  process;  and  then  learnt  for  the  first  time  that  bills  of 
indictment  had  been  found  against  Colonel  Burr  and  him- 
self for  high  treason  and  a  misdemeanor,  and  that  Burr  was 
in  custody.  He  writes  to  his  wife  that  Burr's  situation 
might  be  perilous  as  well  as  his  own;  but  that  he  had  no 
idea  of  attempting  an  escape,  and  adds  :  "  Wilkinson  will 
fall  and  be  disgraced,  whatever  fate  may  attend  Burr  and 
myself."  Before  his  discharge  from  the  civil  process,  he 
was  again  arrested  by  the  Marshal  of  the  Kentucky  Dis- 
trict, on  an  affidavit  made  by  Mr.  David  Meade  that  he 
had  been  indicted  for  treason,  and  a  true  bill  found  against 
him  at  Richmond.  He  was  brought  before  Judge  Todd, 
and  as  he  wished  to  be  heard  by  counsel  was  committed  to 
jail,  and  ordered  to  appear  next  morning,  when  he  read  to 
the  court  an  affidavit  which  he  had  drawn  up.  An  immense 
crowd  assembled,  and  Blannerhasset  went  into  a  history  ot 
his  arrests  and  discharges  in  the  Mississippi  Territory,  and 
asserted  that,  being  on  his  journey  home,  he  had  hastened 
to  surrender  himself  to  Mr.  Bibb,  attorney  for  the  United 
States ;  that  when  he  arrived,  he  had  been  arrested  upon 
civil  process ;  that  he  had  met  Mr.  Clay,  to  whom  he  had 
communicated  his  wishes,  and  who  had  promised  to  see 
him  upon  the  subject  next  morning.  Mr.  Clay,  as  counsel, 
assured  the  court  that  his  client  only  wished  to  be  sent  on 
to  Richmond  for  trial,  but  that  he  desired  that  no  unneces- 
sary rigor  should  be  observed,  and  that  he  might  be  for- 
warded in  as  delicate  a  manner  as  possible.  As  a  citizen, 


xiv  PREFACE. 

Mr.  Clay  protested  against  the  mode  which  had  been  pur- 
sued by  the  Court,  and  said  that  he  regarded  the  whole 
proceedings  as  unprecedented  and  illegal.  Blannerhasset, 
made  an  appeal  to  the  citizens  of  Lexington,  which  would 
have  been  well  received  but  for  the  high  crimes  with  which 
he  was  charged  ;  and  the  judge  issued  a  warrant  for  his 
commitment  until  the  district  judge  could  be  applied  to, 
who  ordered  his  delivery  to  the  court  at  Richmond,  whither 
he  was  conveyed  by  Deputy  Marshal  Meade  and  a  guard  of 
five  men. 

Some  months  previously,  Colonel  Alston,  the  son-in- 
law  of  Burr,  finding  himself  deeply  implicated  by  the  pro- 
clamation of  the  President,  to  release  himself  from  suspi- 
cion had  addressed  a  letter  to  Governor  Pinckney  of  South 
Carolina,  in  which  he  said  that  he  had  never  heard,  directly 
or  indirectly,  of  any  meditated  attack  on  New  Orleans  ;  that 
he  knew  well  enough  that  there  were  men  base  enough  to 
connect  him  with  Colonel  Burr  on  mere  suspicion,  on  the 
ground'of  their  marriage  relation,  and  concluding  with  the 
words :  "  My  residence  is  well  known,  and  I  shall  never 
shrink  from  investigation.  Nay,  more,  presumption,  where 
I  can  not  repel  it  by  positive  prooj ",  shall  be  recorded  as  good 
evidence,  and  the  slightest  suspicion  which  I  can  not  satisfac- 
torily explain  shall  be  admitted  as  guilt." 

Between  Mrs.  Blannerhasset  and  Mrs.  Alston,  the 
greatest  feminine  regard  had  existed ;  but  a  considerable 
misunderstanding  had  prevailed  in  these  troubled  times 
between  their  husbands,  while  Mrs.  Blannerhasset,  in  a 
letter  to  her  husband  expressed,  her  opinion  that  Colonel 
Alston  was  altogether  unworthy  of  such  a  wife.  If  Burr, 
who  was  accused  of  being  without  heart,  although  pos- 
sessed of  immense  intellectual  powers,  had  one  redeeming 
feature  in  his  character,  it  was  in  his  love  for  his  only 
daughter.  Beautiful  and  accomplished  beyond  her  sex, 
she  grew  up  no  ordinary  woman,  and  her  love  for  her 
father  partook  of  the  purity  of  another  world,  being  holy, 
deep,  and  unchanging.  No  sooner  did  she  hear  of  his 


PREFACE.  xv 

arrest,  than  she  fled  to  his  side,  and  even  the  character  of 
Burr  borrows  a  momentary  halo  from  her.  Once,  and  once 
only,  does  he  melt  when  he  tells  her  that  he  will  die  worthy 
of  himself.  Although  Colonel  Burr  had  been  arrested  in 
February,  and  Blannerhasset  in  July,  the  trials  of  these 
two  with  their  companions,  John  Smith  of  Ohio,  Comfort 
Tyler,  Israel  Smith  of  New  York,  and  Davis  Floyd,  were 
oft  postponed.  For  twelve  days  the  court  was  engaged  in 
obtaining  a  jury,  and  in  discussing  points  of  law.  Never 
before  in  the  history  of  the  country  was  there  so  grand  a 
display  of  legal  acumen  and  forensic  talent.  Upon  the 
bench  sat  the  venerated  Marshall,  whom  it  was  rumored 
might  shrink  from  his  duty,  as  in  his  private  character  he 
had  ordered  or  permitted  something  to  be  inserted  in  the 
"  Argus,"  exculpatory  of  Colonel  Wilkinson.  On  that 
point  Blannerhasset  says  in  his  diary,  "  I  am  certain,  what- 
ever dust  or  insects  may  have  sought  the  judge's  robes 
while  off  his  back,  none  will  venture  to  appear  upon  the 
ermine  that  bedecks  his  person."  Calm,  dignified,  and 
attentive,  the  chief  justice  analyzed  the  arguments  of  coun- 
sel, and  noted  their  relevancy  with  the  nicety  of  a  critic,  jus- 
tifying the  reputation  which  he  always  had  of  spotless 
purity  and  soundness  of  judgment  without  an  equal.  At 
the  bar  was  Wirt,  whose  fervid  and  soul-thrilling  elo- 
quence, even  in  this  very  trial,  placed  him  at  once  amongst 
the  foremost  of  American  orators.  With  a  brilliancy  of 
imagination  which  startled  his  auditors  he  swayed  the  minds 
of  the  jury  with  wonderful  effect.  Then  there  was  Luther 
Martin,  whom  Blannerhasset  calls,  "  the  rear  guard  of 
Burr's  forensic  army,"  who  had  previously  distinguished 
himself  in  the  trial  of  Judge  Chase  before  the  United  States 
Senate,  and  who  on  this  occasion  made  a  speech  of  four- 
teen hours'  duration.  Every  word  that  he  uttered  like  a 
two-edged  sword  pierced  the  arguments  of  his  opponents  at 
every  point.  There  was  the  Attorney-General,  George  Hay, 
whose  insolence  to  Mr.  Pritchard  some  time  before  had  oc- 
casioned the  latter  to  throw  a  plate  at  his  head,  which  ter- 


xvi  PREFACE. 

minated  the  affair,  and  kept  Mr.  Attorney  forever  after 
within  the  bounds  of  civility.  Hay  was  always  ready  to 
take  advantage  of  suspicious  circumstances,  and  wield  them 
with  tenfold  force  against  the  prisoner.  There  was  Ran- 
dolph, slow,  calculating,  and  careful,  building  up  the  vul- 
nerable points  of  his  case  against  the  attacks  of  his  adversa- 
ries. There  was  Botts — facetious,  and  playful ;  sometimes 
descending  to  the  ludicrous,  but  often  rising  with  convinc- 
ing argument  to  the  grand.  There  was  Wickham,  dignified 
and  commanding,  taking  up  the  subject  with  a  master- 
hand,  and  holding  it  to  view  in  every  conceivable  light. 
And  there  was  Burr,  proudly  pre-eminent  in  point  of  in- 
telligence to  his  brethren  of  the  bar,  who  had  been  Vice- 
President  of  the  United  States,  and  now  accused  of  the 
highest  and  darkest  crime  in  the  criminal  code.  Standing 
before  the  supreme  tribunal  of  his  country  and  with  the 
eyes  of  the  nation  upon  him,  he  was,  in  the  opinion  of 
many,  already  condemned.  He  had  the  talent,  and  tact,  and 
the  resources  of  the  Government  to  contend  against,  and 
every  faculty  of  his  mind  was  exerted  in  his  own  defense. 
The  magnitude  of  the  charge,  the  number  of  persons  in- 
volved, the  former  high  standing  and  extraordinary  for- 
tunes of  the  accused,  had  excited  an  interest  in  the  commu- 
nity such  as  never  before  had  been  known.  The  witnesses 
against  him  were  mostly  Government  officers,  with  whom, 
at  one  time  or  another,  he  had  been  in  some  way  con- 
nected. On  the  charge  of  treason  the  Court  took  twenty- 
six  days  to  complete  its  inquiry,  and  the  evidence  of  sixty 
witnesses  had  to  be  taken.  There  being  no  suitable  quarters 
in  the  city,  Burr  was  confined  in  the  Penitentiary,  in  the 
suburbs  of  Richmond,  from  whence  he  was  marched  every 
day  into  Court  escorted  by  a  body  guard  of  two  hundred 
men,  which  would  have  done  honor  to  an  Eastern  prince. 
In  addition  to  the  charge  of  treason,  there  was  one  of  mis- 
demeanor. The  question  before  the  Chief  Justice  was 
whether  a  man  once  put  in  jeopardy  of  life  in  one  district, 
for  treason  charged  to  have  been  therein  committed,  and 


PREFACE.  xvii 

acquitted  thereof,  may  afterwards  be  put  to  answer  charges 
of  other  overt  acts  of  the  same  treason  in  another  district. 
On  the  ist  of  September  the  jury  returned  a  verdict-r-that 
Aaron  Burr  is  not  proved  to  be  guilty  under  the  indictment 
by  any  evidence  submitted  to  us;  we,  therefore,  find  him 
not  guilty.  Burr  objected  to  the  verdict  as  being  incorrect 
in  point  of  form,  and  asked  that  it  might  be  given  in  the 
usual  way — simply  "not  guilty."  Mr.  Hay  answered 
that  in  fact  it  was  a  verdict  of  acquittal,  and  that  it  should 
be  entered  in  the  jury's  own  words.  He  said,  "  There  are 
no  precise  words  by  which  the  jury  should  be  governed." 
Burr  replied,  "  They  have  no  right  to  return  a  written  verdict 
at  all ;  they  have  no  right  to  depart  from  the  usual  form." 
He  then  called  for  the  recital  of  the  common  directions 
given  the  jury  by  the  clerk.  They  were  read  and  end  as  fol- 
lows :  "  If  you  find  him  guilty,  you  are  to  say  so  :  if  not 
guilty,  you  are  to  say  so,  and  no  more."  "The  jury  can  not 
be  indulged,"  said  Burr ;  "  they  have  defaced  a  paper  be- 
longing to  the  Court,  by  writing  upon  it  words  which  they 
had  no  right  to  write.  They  ought  to  be  sent  back." 
After  a  short  consultation  it  was  agreed  that  the  simple 
verdict  of  "  not  guilty  "  might  be  entered  on  the  records  of 
the  Court.  The  question  was  now  about  the  second  in- 
dictment, and  Col.  Burr  said  he  was  ready  to  enter  an  ap- 
pearance for  the  misdemeanor,  insisting,  till  he  did  so,  he 
was  not  legally  in  Court  on  that  charge.  Wickham  and 
Botts  supported  their  argument  with  not  only  English  and 
Federal  authorities,  but  with  the  doctrines  of  Attorney- 
General  Hay  himself,  delivered  by  him  on  Chase's  trial, 
which  they  dressed  up  in  such  comments  and  strictures  as 
exhibited  Hay  the  most  bewildered  spectacle  of  confusion 
and  mortiacation.  The  Chief  Justice  deferred  his  opinion 
to  the  following  day,  and  on  the  ninth  of  September  Burr 
was  again  arraigned  upon  an  indictment  for  a  misdemeanor 
which  consisted  of  seven  counts,  the  substance  of  which  was 
that  Aaron  Burr  did  set  on  foot  a  military  enterprise  to 
be  carried  on  against  the  territory  of  a  foreign  prince,  viz., 


xviii  PREFACE. 

the  province  of  Mexico,  which  was  within  the  territory  of 
the  King  of  Spain,  with  whom  the  United  States  were  at 
peace.  After  the  prosecution  had  examined  some  of  the 
witnesses,  and  the  Court  had  decided  that  the  testimony  of 
the  others  was  not  relevant,  the  District  Attorney  made  a 
motion  to  discharge  the  jury.  To  this  motion  Burr  ob- 
jected, insisting  upon  a  verdict.  This  was  on  the  fif- 
teenth of  the  month.  The  court  being  of  opinion  that 
the  jury  could  not  at  this  stage  of  the  case  be  discharged, 
a  verdict  of  acquittal  was  given. 

After  his  trial  at  Richmond,  Colonel  Burr  sailed  for 
England,  where  he  made  unsuccessful  attempts  with  the 
government.  He  was  ordered  to  leave  London  by  Lord 
Liverpool,  and  proceeded  to  Sweden ;  after  which  he 
travelled  through  Germany  to  Paris,  where  he  was  refused 
a  passport  by  the  American  Minister.  Finally,  four  years 
after,  he  returned  to  New  York,  and  died  without  any 
further  encouragement  being  extended  from  any  quarter  to 
his  daring  project, 


THE 


TRIAL    OF    AARON    BURR 


CITY  OF  RICHMOND,  FRIDAY,  May  22,  1807. 

Court  of  the    United  States  for    the  fifth   circuit   and 
district  of  Virginia. 

PRESENT— JOHN  MARSHALL,  chief  justice  of  the 
United  States ;  and  CYRUS  GRIFFIN,  judge  of  the  dis- 
trict of  Virginia. 

Counsel  for  Aaron  Burr :  Edmund  Randolph,  John 
Wick  ham,  Benjamin  Botts,  and  John  Baker. 

Counsel  for  the  prosecution :  George  Hay,  district- 
attorney,  William  Wirt,  and  Alexander  Mac  Rae. 

The  clerk  having  called  the  names  of  the  gentlemen 
who  had  been  summoned  on  the  grand  jury,  Mr.  Burr's 
counsel  demanded  a  sight  of  the  panel;  which  was 
shown  to  them  ;  when  Mr.  Burr  addressed  the  court  to 
the  following  effect : 

"  May  it  please  the  court, 

"  Before  any  further  proceeding  with  regard  to  swear- 
ing the  jury,  I  beg  leave  to  remark  some  irregularity 
that  has  taken  place  in  summoning  part  of  the  panel. 
This  is  the  proper  time  to  make  the  exception.  I  un- 
derstand that  the  marshal  acts  not  under  an  act  of  con- 
gress, but  a  law  of  the  state  of  Virginia,  by  which  he 
is  required  to  summon  twenty-four  freeholders  of  the 
state  to  compose  the  grand  jury.  When  he  has  sum- 
moned that  number,  his  function  is  completed.  He  can- 
not on  any  account  summon  a  twenty-fifth.  If,  there- 
i. — i 


2  TRIAL     OF    AARON    BURR. 

fore,  it  can  be  made  to  appear,  that  the  marshal  has 
struck  off  any  part  of  the  original  panel,  and  substituted 
other  persons  in  their  stead,  the  summons  is  illegal. 
Such  is  the  law  and  the  dictate  of  true  policy ;  for  in  im- 
portant cases,  like  the  present,  a  different  course  would 
produce  the  most  injurious  consequences.  I  consider  it 
proper  to  ask  the  marshal  and  his  deputies,  what  persons 
they  have  summoned,  and  at  what  periods;  whence  ,it 
may  be  known,  whether  some  have  not  been  substituted 
in  place  of  others  struck  off  the  panel.  When  we  have 
settled  this  objection,  I  shall  proceed  to  exceptions  of  a 
different  nature." 

Mr.  Botts  observed,  that  it  was  the  2Qth  section  of  the 
judicial  act,  which  refers  to  the  state  law,  besides  a  dis- 
tinct act,  which  enumerates  other  duties;  that  neither  of 
these  laws  specified  any  particular  mode  by  which  mar- 
shals were  to  summon  juries  in  different  districts.  By 
the  first  section  of  the  Virginia  act,  the  sheriff  is  to  sum- 
mon twenty-four  freeholders,  any  sixteen  of  whom  ap- 
pearing are  to  constitute  a  grand  jury.  The  first  section 
does  not  state  that  he  is  to  make  a  return,  but  a  distinct 
section  inflicts  a  penalty,  if  he  violate  the  duties  pre- 
scribed by  the  first  section;  that  is,  if  he  fail  "to  sum- 
mon a  grand  jury,  and  return  a  panel  of  their  names." 
Colonel  Burr  is  anxious  to  have  nothing  more  than  a  fair 
trial.  The  reports  circulated,  and  prejudices  excited 
against  him,  justify  a  strict  attention  to  his  rights.  He 
therefore  asks  the  strictest  scrutiny  into  past  and  subse- 
quent measures.  An  important  interest  is  involved  in 
the  authority  of  the  grand  jury.  And  if  there  be  any 
irregularity  in  the  marshal's  summons,  it  ought  now  to 
be  rectified.  By  the  act  of  Virginia,  a  sheriff,  and  by 
the  act  of  congress  a  marshal,  are  mere  ministerial  officers 
bound  to  discharge  certain  duties.  He  is  to  summon 
twenty-four  jurors.  When  that  act  is  done,  it  is  irrevo- 
cable, and  his  duty  at  an  end.  This  court  only  possesses 
the  authority  to  excuse  any  of  those  who  have  been  sum- 
moned, and  direct  the  marshal  to  substitute  others,  till 
the  necessary  quorum  be  completed. 

Mr.  Botts  further  observed,  that  he  had  no  intention 
of  casting  the  slightest  imputation  on  the  marshal  for  his 
conduct  in  this  transaction  ;  that  his  honorable  character 


ARGUMENT.  3 

placed  him  above  suspicion,  and  the  fault,  if  any,  must  have 
arisen  from  official  misconceptions;  that  he  did  not  pro- 
pose to  interrogate  Major  Scott  in  any  manner  that  might 
possibly  criminate  him  ;  but  that  the  court  had  a  right 
to  inquire,  and  if  any  error  was  committed,  to  correct  it. 
That  if  he  was  overruled  in  this  motion,  he  would  then 
crave  leave  of  the  court  to  produce  testimony  as  to  the 
facts  ;  that  he  took  it  for  granted,  that  if  a  single  mo- 
ment intervened  between  the  summoning  of  a  juror  and 
the  meeting  of  a  court,  the  court  alone  had  the  power  to 
discharge  him;  that  with  regard  to  the  present  panel  it 
would  appear,  that  the  marshal  after  summoning  one  in- 
dividual, had  notified  another  to  attend  ;  in  other  words, 
he  had  summoned  him  according  to  the  legal  definition 
of  the  term  "  summons."  That  this  was  not  the  duty  of 
the  marshal ;  that  when  the  original  panel  was  complete, 
his  duty  was  at  an  end,  and  he  must  return  that  very 
panel  precisely,  without  any  addition.  What  mischiefs 
might  not  result  from  a  different  practice,  particularly  in 
cases  of  extreme  importance,  where  the  government  was 
concerned,  since  the  marshal  himself  depended  on  the 
government  for  the  duration  of  his  commission  ? 

Mr.  Botts  therefore  contended,  that  the  ministerial' 
duties  of  a  marshal  ceased  with  the  summons  which  he 
gave ;  and  that,  if  the  jurors  did  not  appear,  it  was  the 
privilege  of  the  court  to  supply  any  deficiency.  He 
cited  the  decision  of  the  supreme  court  of  the  United 
States  in  the  case  of  Marbury  v.  Madison,  to  show,  that 
when  the  ministerial  duties  of  an  officer  were  discharged, 
his  power  necessarily  ceased,  and  his  act  was  irrevocable. 
This  doctrine  was  of  universal  application  in  law,  both  in 
America  and  England.  It  was  applicable  to  a  sheriff, 
after  he  had  served  a  common  writ  of  fieri  facias.  If 
he  summon  a  petit  juryman,  who  fails  to  appear  before 
the  court,  it  is  the  right  of  the  court  alone  to  fine  or  to 
excuse  him.  Mr.  Botts  then  concluded,  that  he  would 
ask  the  marshal  who  were  the  twenty-four  whom  he  had 
first  summoned  ;  for  that  may  constitute  the  grand  jury. 
Every  one  beyond  that  number  was  illegally  summoned. 
It  was  the  right  of  Colonel  Burr  to  demand  such  a  pur- 
gation of  the  panel. 

Mr.  Hay,  the  district-attorney,  observed,  that   he  was 


4  TRIAL     OF    AARON    BURR. 

not  prepared  to  make  any  observations  upon  this  ques- 
tion, as  it  was  a  point  which  they  had  never  before  had 
any  .occasion  to  consider;  that  the  proposition  was,  how- 
ever, of  no  great  importance,  since,  if  any  of  them  were 
set  aside,  there  would  still  be  a  sufficient  number  to  con- 
stitute a  grand  jury;  or  the  deficiency  might  be  supplied 
by  a  new  summons  among  the  bystanders.  If  there 
were,  in  reality,  any  objection  to  the  regularity  of  the 
summons,  he  was  willing  to  accommodate  the  opposite 
counsel ;  that  he  was  not  certain  how  far  it  was  strictly 
proper  to  interrogate,  or  examine  into  the  time  of  slim- 
moning  the  different  members  of  the  panel,  as  he  had 
not  been  very  conversant  with  business  of  this  kind. 
He  was,  however,  content  that  the  court  should  decide  ; 
and  if  it  should  be  their  opinion  that  the  marshal  should 
be  interrogated,  how  many  jurymen  he  had  summoned, 
and  when  he  had  discharged  them,  he  should  feel  perfect- 
ly satisfied. 

Mr.  Wickham. — Before  we  go  into  this  inquiry,  we 
declare,  that  we  mean  no  personal  imputation  upon  the 
respectable  gentleman  who  is  the  marshal.  His  intentions 
were  certainly  pure.  It  is  an  error  of  judgment  alone 
to  which  we  object.  But  in  the  present  case,  where 
such  important  interests  are  at  stake,  and  where  such 
unjustifiable  means  have  been  used  to  prejudice  the  pub- 
lic mind  against  Colonel  Burr,  it  is  his  right  to  take  every 
advantage  which  the  law. gives  him.  We  are  prepared 
to  show,  that  when  a  person  is  bound  in  a  recognizance, 
he  has  a  right,  at  this  period  of  the  business,  to  come 
before  the  court  with  his  exceptions  to  the  grand  jury; 
and  if  in  any  other  case,  why  not  in  one  of  such  deep 
importance  as  the  present?  In  support  of  this  position, 
Mr.  Wickham  cited  2  Hawkins's  Pleas  of  the  Crown, 
page  307,  sect.  16,  and  3  Bacon's  Abridgment,  page  725. 
Whether  we  might  afterwards  file  a  plea  in  abatement 
for  the  error  committed,  is  not  now  to  be  discussed.  It 
is  Colonel  Burr's  anxious  desire,  that  this  whole  affair 
should  terminate  here,  and  that  this  grand  jury  may 
determine  his  case. 

The  chief  justice  called  for  the  law  of  Virginia. 

Mr.  Hay  read  it — Revised  code,  100,  §  2. — The  con- 
struction put  upon  this  part  of  the  law  seems  to  me  far 


ARGUMENT. 

more  rigid  than  sound  sense  warrants.  By  this  law,  the 
marshal  is  empowered  to  select  twenty-four  freeholders, 
legally  qualified  to  serve*  on  the  grand  jury.  The  officer, 
in  many  cases  necessarily  ignorant  of  the  situation  of  an 
individual,  summons  him  to  attend.  The  person  in- 
forms him,  that,  for  some  personal  misfortune,  some  do- 
mestic calamity,  or  some  indispensable  business,  it  is  im- 
possible for  him  to  attend.  We  ask,  whether  the  accu- 
rate construction  of  this  law  forbids  him  to  summon 
another  in  his  place  ?  Where  is  the  legal  authority  to 
prove,  that  when  he  has  once  summoned  twenty-four 
jurymen,  his  ministerial  function  is  at  an  end  ?  The  mo- 
ment it  appears  in  court,  that  the  legal  number  of  jurors 
is  not  present,  he  is  to  fill  up  his  panel  from  the  bystand- 
ers. We  appeal  to  the  candor  of  the  opposite  counsel, 
to  point  out  the  real  distinction  between  the  two  cases. 
Why  should  the  marshal  have  the  right  to  fill  up  his 
panel,  when  it  is  once  ascertained  before  the  court,  that 
some  of  the  jurymen  have  not  actually  attended,  and 
yet  deny  him  the  right  of  substituting  others  in  the 
place  of  those  he  has  summoned,  but  who,  he  is  satisfied, 
before  the  meeting  of  the  court,  can  not  attend  ?  In- 
stead of  a  difference,  the  two  cases  are  strikingly  paral- 
lel. What  the  fact  was,  Mr.  Hay  said  he  knew  not,  but 
he  believed  that  some  of  those  who  were  said  to  be  sub- 
stituted had  not  been  positively  summoned  by  the  mar- 
shal, but  had  been  merely  applied  to,  to  know  whether 
they  could  attend. 

Mr.  Wickham  contended,  that  the  counsel  for  the  Uni- 
ted States  had  not  fairly  met  the  question.  There  is  a 
doubt  whether  Colonel  Burr  has  not  a  right  to  come  for- 
ward with  his  exceptions  now  to  the  grand  jury.  As  the 
authorities  on  this  subject  are  short,  he  would  take  the 
liberty  of  reading  them  to  the  court.  (He  read  those 
he  before  cited.)  From  these  authorities  it  manifestly 
appears,  that  a  person  bound  in  a  recognizance,  had  a 
right  before  the  grand  jury  were  sworn,  to  state  his  ex- 
ceptions to  the  mode  of  impaneling  them.  It  is  for  this 
reason  th.it  Colonel  Burr  has,  in  this  stage  of  the  busi- 
ness, come  forward  with  his  objections.  Mr.  Hay  con- 
tends, that,  our  construction  of  the  law  is  more  rigid  than 
f  ound  policy  demands.  But  when  the  words  of  the  la\tf 


6  TRIAL  -OF    AARON    BURR. 

are  obvious,  why  should  we  resort  to  a  dubious  construc- 
tion ?  "  Ita  lex  scripta  est."  But  if  we  are  to  wander 
into  the  wide  field  of  policy,  how  completely  would 
it  bear  against  the  gentleman's  cause  !  God  forbid,  sir, 
that  I  should  utter  the  slightest  imputation  upon  the 
character  and  official  conduct  of  Major  Scott ;  they  soar 
above  suspicion.  But  if  once  the  marshal,  who  holds 
his  commission  at  the  will  of  the  government,  were  per- 
mitted to  alter  the  panel  as  he  pleased,  the  life  of  every 
citizen  in  this  state  would  be  held  at  his  pleasure.  It  is 
therefore  essentially  important,  that  the  ministerial  of- 
ficer should  rigidly  pursue  the  statute  from  which  he  de- 
rives his  authority.  And  what  is  his  duty  in  the  present 
instance  ?  He  is  to  summom  twenty-four  freeholders  to 
serve  on  the  grand  jury,  any  sixteen  of  whom  may  con- 
stitute a  quorum.  Mr.  Hay  had  declared,  that  this  provi- 
sion was  mere  matter  of  form  ;  for  if  there  be  not  a  suffi- 
cient number  present  to  constitute  a  quorum,  the  mar- 
shal may  make  up  to  the  full  number  twenty-four. 
But  this  is  not  the  fact.  If  sixteen  jurymen  attend,  the 
marshal  can  not  add  one  more.  Let  us,  then,  apply  a 
suppositious  case.  The  marshal,  if  notified  that  one  of 
the  jury  whom  he  has  summoned  can  not  attend,  is  au- 
thorized, according  to  Mr.  Hays  doctrine,  to  summon  a 
substitute.  It  is  no  impediment  to  the  exercise  of  this 
authority,  that  there  be  the  legal  quorum  of  sixteen  re- 
maining upon  the  panel ;  he  may  proceed  to  summon 
substitutes  till  he  completes  the  whole  number  twenty- 
four.  And  yet,  if  the  case  were  to  happen  in  court,  the 
marshal  would  certainly  have  no  authority  to  complete 
the  whole  number.  Why,  then,  suppose  such  a  difference 
of  authority  in  and  out  of  court  ?  Why  not  rather  sup- 
pose, that  the  marshal  has  no  authority  to  do  that  out 
of  court,  which  he  can  not  do  before  the  court  ?  Let  us 
suppose  another  case.  A  grand  juror  has  been  sum- 
moned for  several  weeks  before  the  meeting  of  the  court. 
The  bare  authority  of  the  marshal  is  sufficient,  according 
to  this  doctrine,  to  excuse  him  from  serving,  and  to  sub- 
stitute another  in  his  place,  only  one  hour  before  the 
meeting  of  the  court.  Mr.  WickJtam  declared  he  could 
mention  the  case  of  a  man  who  had  been  excused  from 
this  very  panel. 


ARGUMENT.  7 

Mr.  Scott  (the  marshal.) — Name  him,  sir ;  I  demand  his 
name. 

•  Mr.  Wickham  declared,  that  he  meant  no  imputation 
upon  Mr.  Scott,  but  he  would  not  submit  to  such  inter- 
ruptions. If  no  sufficient  excuse  is  given  by  the  absent 
juror,  he  is  subject  to  a  fine.  Is  it  then  contended,  that 
the  marshal  is  to  judge  in  the  place  of  the  court?  not 
only  to  relieve  the  person  of  the  juror,  but  his  property 
also  from  the  fine?  The  words  of  this  law  are  too  plain 
to  be  mistaken.  It  admits  of  no  latitude  of  construc- 
tion. But  if  the  marshal  has  really  transcended  his  au- 
thority, yet  I  do  not  hesitate  to  declare  my  opinion,  that 
he  intended  to  discharge  his  duty  with  fidelity.  It  was 
only  an  error  in  judgment,  to  which  all  men,  however 
well  versed  in  the  law,  are  liable. 

Mr.  Hay. — Will  the  court  indulge  me  with  a  single 
additional  remark  ?  I  stated  before,  that  when  the  mar- 
shal found  that  one  of  the  jury,  whom  he  had  before 
summoned,  could  not  attend,  he  was  authorized  to  sum- 
mon a  substitute.  Mr.  Wickham,  however,  contends, 
that  the  marshal  can  not  summon  others,  after  sixteen 
have  appeared.  But  for  what  reason  ?  Because  there  is, 
in  reality,  no  occasion  for  it.  The  object  of  the  law  is 
already  attained.  The  grand  jury  is  complete,  and  it  is 
unnecessary  to  take  up  further  time,  when  the  grand 
jury  is  legally  full.  But  before  the  court  convenes,  how 
is  it  possible  for  the  marshal  to  know  how  many  of  those 
summoned  will  attend  ?  According  to  the  doctrine  of 
the  opposite  counsel,  there  maybe  no  grand  jury. 

The  chief  justice  inquired,  whether  the  question  had 
ever  come  before  the  state  courts? 

Mr.  Randolph. — Not,  sir,  to  my  knowledge.  In  nearly 
thirty  years'  practice  (and  a  considerable  part  of  that 
time  I  was  attorney-general  for  the  commonwealth)  no 
occasion  has  occurred  for  such  an  objection.  I  have 
never  seen  a  case  where  it  was  so  absolutely  necessary  to 
assert  every  privilege  belonging  to  the  accused,  as  in  this. 
But  as  to  the  right  itself,  abstractedly  considered,  I  have 
never  hesitated  a  moment  about  its  existence.  It  is 
written  in  broad,  intelligible  characters.  Sir,  if  we  ever 
submit  to  these  relaxations  of  the  rights  of  the  accused, 
a  time  may  possibly  come,  when  we  may  lament  the 


8  TRIAL     OF    AARON    BURR. 

precedent  we  have  established ;  when  men  less  virtuous 
than  the  present  respectable  marshal,  shall  succeed  to 
his  functions.  But  the  question  in  the  present  case  is, 
not  what  has  been  the  practice  in  the  state  courts,  but 
what  is  the  right?  If  this  right  has  never  been  before 
asserted,  it  is  because  there  never  was  an  occasion  which 
so  imperiously  demanded  it  as  the  present  ;  because 
there  never  was  such  a  torrent  of  prejudice  excited 
against  any  man,  before  a  court  of  justice,  as  against 
Colonel  Burr,  and  by  means  which  we  shall  presently 
unfold. 

Chief  Justice. — As  this  question  has  never  been  de- 
cided before  the  state  courts,  we  must  refer  to  the  words 
of  the  act  of  assembly.  There  can  be  no  doubt  that  this 
is  the  time  when  the  accused  has  a  right  to  take  excep- 
tions to  the  jury ;  and  the  only  doubt  can  be,  is  this  a 
proper  exception  ?  The  marshal  is  authorized  by  law  to 
summon  twenty-four  jurymen  ;  but  he  is  not  to  summon 
a  twenty-fifth.  Of  course,  the  twenty-fifth  is  not  legally 
summoned,  unless  he  has  the  power  to  discharge  a  person 
already  summoned.  He  has  no  such  power,  unless  the 
jury  be  composed  of  bystanders.  The  twenty-four  first 
summoned  must  compose  the  jury,  sixteen  of  whom 
constitute  a  quorum.  It  follows,  therefore,  that  no  one 
can  be  on  the  grand  jury,  unless  he  be  one  of  the  twenty- 
four  first  summoned,  or  one  who  has  been  selected  from 
the  bystanders  by  the  direction  of  the  court.  When  the 
panel  has  been  once  completed  by  the  marshal,  its 
deficiencies  can  be  supplied  only  from  the  bystanders. 

The  chief  justice  further  observed,  that  he  was  not 
well  acquainted  with  the  practice  in  the  state  courts ; 
but  he  believed  the  practice  of  sheriffs  to  be,  to  excuse  a 
man  summoned  on  the  jury,  if  they  are  satisfied  that  his 
excuse  is  reasonable.  So  it  may  have  been  with  the 
officer  of  this  court,  who  acted,  he  had  no  doubt,  with 
the  most  scrupulous  regard  to  what  he  believed  to  be 
the  law.  That  the  court,  however,  thought  the  marshal 
had  no  such  dispensing  p^ovver.  One  very  obvious  reason 
against  the  marshal's  possessing  this  power  of  substitu- 
tion, is,  that  if  a  person  summoned  should  come  into 
court,  and  prove  that  he  had  been  actually  summoned, 
he  certainly  would  be  on  the  grand  jury,  if  one  of  the 


ARGUMENT.  9 

twenty-four  first  summoned.  The  general  principle  is, 
that  when  a  person  is  put  in  the  panel  he  stands  upon 
it,  and  can  not  be  displaced  by  the  marshal.  There  is 
an  evident  distinction  between  actually  summoning  a 
grand  juryman,  and  mere'ly  talking  to  a  person  about 
summoning  htm.  The  court  is,  therefore,  of  opinion,  that 
a  person  substituted  in  the  place  of  one  actually  sum- 
moned, can  not  be  considered  as  being  on  the  panel. 

Mr.  Burr. — The  court  having  established  the  principle, 
we  must  ask  their  aid  to  come  at  the  facts.  We  wish  to 
know,  when  certain  persons  were  summoned,  when  dis- 
charged, and  whether  other  persons  were  substituted  in 
their  stead. 

The  marshal  said,  that  he  had  not  the  least  objection 
to.  state  all  the  facts  necessary  to  be  known  on  this 
occasion.  A  few  days  ago  he  had  received  a  letter  from 
Colonel  John  Taylor,  of  Caroline,  one  of  those  whom  he 
had  summoned  on  the  jury,  in  which  he  states,  that  a 
hurricane  of  wind  had  destroyed  his  carriage-house,  and 
with  it  his  carriages,  so  that  he  could  not  use  them  ;  and 
that  his  indisposition  prevented  his  riding  to  Richmond 
on  horseback.  This  letter  he  had  laid  before  both  their 
honors,  and  the  chief  justice  had  deemed  his  excuse 
reasonable.  He  had  then  summoned  Mr.  Barbour  to 
serve  in  Colonel  Taylor's  place.  He  had  also  received  a 
letter  from  Mr.  John  Macrae,  informing  that  he  was 
going  to  leave  the  state  for  his  health.  He  had  in  conse- 
quence summoned  Mr.  Foushee  in  his  place.  The  mar- 
shal added,  that  he  felt  it  to  be  his  duty  to  bring  twenty- 
four  jurymen  into  court,  and  acted  upon  this  principle. 

The  court  decided,  that  Mr.  Barbour  and  Mr.  Foushee, 
the  substituted  persons,  were  not  on  the  grand  jury. 

Mr.  Burr. — I  understand  that  the  panel  is  now 
reduced  to  sixteen,  and  that  this  is  the  proper  time  to 
make  any  other  exceptions  to  the  panel.  It  is  with 
regret,  that  I  shall  now  proceed  to  exercise  the  privil- 
ege of  challenging  for  favor.  In  exercising  this  right,  I 
shall  perhaps  appeal  to  the  authority  of  the  court  to  try 
these  jurors.  Lest  it  may  be  contested,  it  is  better  to 
settle  the  principle  first. 

Mr.  Hay,  without  directly  contesting,  called  for  the 
law  to  justify  the  application. 


TO  TRIAL    OF    AARON    BURR. 

Mr.  Burr. — Let  it  be  distinctly  understood,  that  I 
claim  the  same  right  of  challenging  u  for  favor,"'  the 
grand  jury,  that  I  have  of  challenging  the  petit  jury.  I 
admit,  that  it  is  not  a  peremptory  challenge,  but  that  I 
must  show  good  cause  to  support  the  challenge.  It  will 
be  of  course  necessary  to  appoint  triers  to  decide,  and 
before  whom  the  party  and  the  witnesses  to  prove  or 
disprove  the  favor,  must  appear. 

Mr.  Botts. — There  can  be  no  question,  that  a  person 
standing  in  the  situation  of  Colonel  Burr,  may  challenge 
the  jury  for  favor.  In  civil  cases,  any  individual  may 
challenge  a  jury  for  favor  or  partiality  to  his  antagonist ; 
a  fortiori,  it  must  exist  in  criminal  cases.  Mr.  Botts  here 
cited  authority  in  support  of  his  principle,  and  admitted, 
that  the  cause  of  challenge  must  be  proved  by  testimony ; 
that  it  was  necessary  to  prevent  such  impurity  from  creep- 
ing into  the  commencement  of  his  trial,  as  must  contami- 
nate all  its  subsequent  stages;  that  no  reflection  against 
the  integrity  of  the  present  jurors  was  intended;  but  in 
principles  of  plain  common  sense  it  was  proper  to  remove 
every  cause  that  might  defeat  the  purposes  of  justice. 

Mr.  Hay  disavowed  the  intention  of  opposing  substan- 
tial exceptions,  and  admitted  the  law  to  be  as  stated  by 
the  opposite  counsel. 

Mr.  Burr. — I  shall,  then,  proceed  to  name  the  persons 
and  causes  of  challenge.  The  first  I  shall  mention  is 
William  B.  Giles,  against  whom  there  are  two  causes  of 
challenge.  The  first  is  a  matter  of  some  notoriety,  be- 
cause dependent  on  certain  documents  or  records;  the 
second  is  a  matter  of  fact,  which  must  be  substantiated 
by  witnesses.  As  to  the  first,  Mr.  Giles,  when  in  the 
senate  of  the  United  States,  had  occasion  to  pronounce 
his  opinion  on  certain  documents,  by  which  I  was  con- 
sidered to  be  particularly  implicated.  Upon  those  docu- 
ments he  advocated  the  propriety  of  suspending  the  writ 
of  habeas  corpus.  The  constitution,  however,  forbids 
such  suspension,  except  in  cases  of  invasion ^or  insurrec- 
tion, when  the  public  safety  requires  it.  It  was,  therefore, 
to  be  inferred,  that  Mr.  Giles  did  suppose  that  there  was 
a  rebellion  or  insurrection,  and  a  public  danger  of  no 
common  kind.  It  is  hardly  necessary  to  observe,  that 
with  this  rebellion,  and  this  supposed  danger,  I,  myself, 


CHALLENGING     THE    JURY.  n 

had  been  supposed  to  be  connected.  Perhaps  this  may 
be  a  sufficient  reason  to  set  aside  Mr.  Giles.  But  if  not, 
I  shall  endeavor  to  establish  by  evidence,  that  he  has 
confirmed  these  opinions  by  public  declarations;  that  he 
has  declared  that  these  documents,  involving  me,  con- 
tained guilt  of  the  highest  grade. 

Mr.  Botts. — There  is  no  necessity  of  adding  any- 
thing to  the  observations  of  Colonel  Burr.  If  the  right 
of  challenge  exists,  the  right  to  try  the  challenge  exists 
also.  But  while  I  am  up,  I  will  declare  that  no  reflection 
is  intended  to  be  made  on  the  character  or  conduct  of 
Mr.  Giles.  That  gentleman  will  be  candid  enough  to 
admit,  that  there  is  not  the  least  design  to  wound  his 
feelings.  It  is  with  the  utmost  reluctance  that  Colonel 
Burr  has  prevailed  upon  himself  to  advance  this  excep- 
tion. I  have  authorities,  however,  to  prove  that  these 
two  causes  are  sufficient  to  disqualify  Mr.  Giles.  The 
first  relates  to  his  public,  the  second  to  his  individual 
conduct. 

Mr.  Hay. — How  many  of  the  panel  does  the  counsel 
mean  to  object  to  ? 

Mr.  Botts. — Only  two. 

Mr.  Hay. — I  was  about  to  make  a  proposition  which 
m-ight  relieve  us  from  all  this  useless  embarrassment,  and 
which  might  gratify  the  views  of  the  accused.  If  the 
gentlemen  who  are  challenged  on  the  jury  will  consent  to 
withdraw  themselves,  I  can  have  no  objection.  I  am 
content  that  every  one  who  has  made  declarations  ex- 
pressive of  decisive  opinion,  should  be  withdrawn'  from 
the  jury.  I  am  not  disposed  to  spend  time  on  such 
points  as  these. 

Mr.  Burr. — It  will  certainly  save  time,  and  I  assent  to 
the  proposition. 

Mr.  Giles  consented  to  withdraw. 

Chief  Jiistice. — The  court  thinks  that  if  any  gentleman 
has  made  up  and  declared  his  mind,  it  would  be  best  for 
him  to  withdraw. 

Mr.  Burr. — The  other  gentleman  whom  J  shall  chal- 
lenge is  Wilson  Gary  Nicholas.  The  objection  is,  that  he 
has  entertained  a  bitter  personal  animosity  against  me; 
and  therefore  I  can  not  expect  from  him  that  pure  im- 
partiality of  mind  which  is  necessary  to  a  correct  decision. 


i2  TRIAL     OF    AARON    BURR. 

I  feel  the  delicacy  of  my  situation  ;  but  if  the  gentleman 
will  consent  to  withdraw,  I  will  waive  any  further  inquiry.  ' 

Mr.  Nicholas  consented  to  withdraw. 

The  court  established  the  following,  as  being  the  proper 
questions  to  be  put  to  the  jurors:  First.  Have  you 
•  made  up  your  mind  on  the  case,  or  on  the  guilt  or  inno- 
cence of  Colonel  Burr,  from  the  statements  you  have 
seen  in  the  papers,  or  otherwise?  and,  finally,  have  you 
formed  and  expressed  (or  delivered)  an  opinion  on  the 
guilt  or  innocence  of  Colonel  Burr  (or  the  accused)? 

The  panel  was  here  called  over,  and  fourteen  only  ap- 
peared, upon  which  the  marshal  requested  the  clerk  to 
add  thereto  the  names  of  John  Randolph  and  William 
Foushee.  The  court  then  instructed  the  clerk  to  place 
Mr.  Randolph  as  foreman,  who,  being  called  on  to  take 
the  foreman's  oath,  addressed  the  court  thus : 
"  May  it  please  the  court, 

"  I  wish  to  be  excused  from  serving.  I  will  state  the 
reasons  of  that  wish.  I  have  formed  an  opinion,  not  on 
the  case  now  before  the  court,  because  I  know  not  what 
.  the  case  is,  but  concerning  the  nature  and  tendency  of 
certain  transactions  imputed  to  the  gentleman  now  before 
you.  I  do  trust,  that  without  arrogating  to  myself  any 
thing  more  than  becomes  a  man,  I  would  divest  myself 
of  this  prepossession  upon  evid'ence.  But  I  should  be 
wanting  in  candor  to  the  court  and  the  party  accused,  il 
I  did  not  say,  that  I  had  a  strong  prepossession. 

Mr.  Burr. — Really,  I  am  afraid  that  we  shall  not  be 
able  to  find  any  man  without  this  prepossession. 

Chief  Justice. — The  rule  is,  that  a  man  must  not  only 
have  formed  but  declared  an  opinion,  in  order  to  exclude 
him  from  serving  on  the  jury. 

Mr.  Randolph. — I  do  not  recollect  to  have  declared 
one. 

Upon  which  Mr.  Randolph  was  sworn  as  foreman,  and 
the  rest  of  the  panel  called  to  the  book,  until  it  was  Dr. 
Foushee's  turn.  He  stated  to  the  court  that  he  felt  some 
difficulty  about  the  propriety  of  serving  on  the  jury. 

After  some  observations  by  Messrs.  Wickham,  Ran- 
dolph and  Hay,  the  chief  justice  observed  that  the 
difference  seemed  to  be,  that  Dr.  Foushee  had  made  up 
an  opinion  both  as  to  law  and  fact  ;  whereas  other  gen- 


MOTION     TO    INSTRUCT    JURY.  13 

tlemen  had  formed  an  opinion  only  as  to  certain  facts. 
Consequently  Dr.  Foushee  was  permitted  to  withdraw. 

The  grand- jury  were  then  sworn,  and  were  as  follows  : 

John  Randolph,  junior,  foreman.  Joseph  Eggleston, 
Joseph  C.  Cabell,  Littleton  W.  Tazewell,  Robert  Taylor, 
James  Pleasants,  John  Brockenbrough,  William  Daniel, 
James  M.  Garnett,  John  Mercer,  Edward  Pegram,  Mun- 
ford  Beverly,  John  Ambler,  Thomas  Harrison,  Alexander 
Shephard,  and  James  Barbour. 

The  chief  justice  then  delivered  an  appropriate  charge 
to  the  grand  jury,  in  which  he  particularly  dwelt  upon 
the  definition  and  nature  of  treason,  and  the  testimony 
requisite  to  prove  it.  After  which  they  retired. 

Colonel  Burr  then  addressed  the  court,  and  stated  his 
wish  that  the  court  should  instruct  the  grand  jury  on 
certain  leading  points,  as  to  the  admissibility  of  certain 
evidence  which  he  supposed  would  be  laid  before  the 
grand  jury  by  the  attorney  for  the  United  States. 

Mr.  Hay  hoped  that  the  court  would  proceed  as  they 
had  always  done  before,  and  that  they  would  not  grant 
particular  indulgences  to  Colonel  Burr,  who  stood  on  the 
same  footing  with  every  other  man  charged  with  a  crime. 
That  they  had  already  charged  the  jury  on  certain. mate- 
rial principles,  and  he  trusted  that  the  court  would  not 
depart  from  established  rules,  or  adopt  a  new  precedent, 
to  oblige  the  accused. 

Mr.  Burr. — Would  to  God  that  I  did  stand  on  the 
same  ground  with  every  other  man.  This  is  the  first 
time  I  have  ever  been  permitted  to  enjoy  the  rights  of  a 
citizen.  How  have  I  been  brought  hither  ? 

The  chief  justice  said  it  was  improper  to  go  into  these 
digressions. 

Mr.  Burr  said  that  the  attorney  for  the  United  States 
had  mistaken  his  meaning,  if  he  supposed  that  he  wished 
to  be  considered  as  standing  there  on  a  different  footing 
from  other  citizens  ;  that  he  viewed  himself  as  only  en- 
titled to  the  same  privileges  and  rights  which  belonged 
to  every  other  citizen ;  that  how  much  soever  he  may 
have  disapproved  of  certain  principles  laid  down  by  the 
supreme  court  in  their  late  decisions-,  he  should  not  at 
present  insist  on  his  objections  to  them  ;  that  there  were 
many  points  on  which  the  best  informed  jurymen  might 


14  TRIAL    OF    AARON    BURR. 

be  ignorant,  or  entertain  doubts.  All  he  wished  the  court 
to  do  now  was,  to  instruct  the  jury  on  certain  points 
relating  to  the  testimony;  for  instance,  as  to  the  article 
of  papers. 

Mr.  Hay  pledged  himself  that  no  attempt  should  be 
made  to  send  up  any  testimony  to  the  jury  without  the 
knowledge  of  the  court. 

Mr.  Randolph  obseryed,  that  it  was  not  on  particular 
parts,  but  on  certain  principles  of  testimony,  that  he 
wished  instructions  from  the  court  to  the  jury  ;  for  in- 
stance, to  instruct  them  how  many  witnesses  were 
necessary  to  satisfy  them  that  an  overt  act  was  committed  ; 
how  far  facts  committed  in  different  districts  should  be 
suffered  to  bear  upon  a  single  act  committed  in  one  dis- 
trict ;  how  far  facts  done  in  one  district,  ought  to  be  ad- 
mitted as  evidence  to  confirm  the  commission  of  other 
facts  in  another  district;  and  what,  in  short,  was  proper 
evidence  to  be  laid  before  them. 

Mr.  //tfj  objected  to  this  proceeding  as  extraordinary  ; 
that  the  opposite  counsel  would  require  from  the  court  a 
dissertation  on  the  whole  criminal  law,  upon  every  point 
which  might  possibly  occur ;  that  the  jury  were  the 
proper  judges,  and  if  they  had  doubts  let  them  apply  to 
the  court  for  instructions. 

Mr.  Wickham  observed  that  this  was  not  an  ordinary 
case,  as  had  been  said ;  that  the  man  who  thought  so 
must  have  shut  his  eyes  against  the  host  of  prejudices 
raised  against  his  client ;  that  the  attorney  for  the  United 
States  had  said,  that  there  was  no  man  who  had  not 
formed  an  opinion  on  it ;  that  he  did  not  require  a  dissei- 
tation  on  criminal  law  in  general,  but  merely  that  the 
court  would  instruct  the  jury  on  certain  points  of  law 
and  evidence ;  that  the  necessity  of  instructing  arose 
from  the  peculiarity  of  this  case ;  that  there  might  be 
witnesses  from  different  parts  of  the  United  States,  who 
would  state  facts  not  connected  with  Colonel  Burr  ;  thac 
there  were  witnesses  to  show  what  was  done  in  the  west- 
ern country  when  he  was  hundreds  of  miles  distant ;  that 
the  jury  ought  to  know  from  the  court  how  much  of  this 
vast  mass  of  testimony  ought  to  have  a  legal  application. 

Mr.  Hay  enforced  his  former  objection,  that  if  the  law 
was  to  be  laid  down  by  the  court,  they  would  certainly 


MOTION     TO    INSTRUCT    JURY.  15 

wish  to  have  it  explained  by  both  sides;  that  the  gentle- 
men on  the  other  side  wished  the  court  to  decide  without 
argument,  on  matters  the  most  important ;  that  as  the 
jury  were  very  intelligent,  and  the  court  had  already 
given  a  general  definition  of  principles,  the  correct  course 
was  to  proceed  in  the  usual  way,  without  wasting  time 
in  unnecessary  argument. 

Mr.  Botts  said  that  in  a  case  of  such  unexampled  im- 
portance, which  was  sufficiently  attested  by  the  busy 
crowd  around  them,  the  noise  in  the  country,  the  curios- 
ity of  the  people,  and  the  activity  of  the  government, 
no  reasonable  objection  could  be  made  to  even  wasting 
a  few  minutes;  that  it  was  a  case  where  the  prisoner 
required,  and  ought  to  receive,  the  benefit  of  every  legal 
right  which  the  court  could  furnish. 

Chief  justice  observed,  that  there  would  certainly  be  a 
difficulty  in  the  court's  giving  dissertations  on  criminal 
or  penal  laws ;  that  he  was  not  prepared  at  present  to 
say,  whether  the  same  evidence  was  necessary  before  the 
grand  jury  as  before  the  petit  jury  ;  whether  two  wit- 
nesses to'an  overt  act  were  required  to  satisfy  a  grand 
jury ;  this  was  a  point  which  he  would  have  to  consider. 
That  he  had  not  made  up  his  mind  on  the  evidence  of 
facts  said  to  be  done  in  different  districts,  how  far  the 
one  could  be  adduced  as  evidence  in  proof  or  confirma- 
tion of  the  other  ;  but  his  present  impression  was,  that 
facts  done  without  the  district,  may  be  brought  in  to 
prove  the  material  fact  said  to  be  done  within  the  district, 
when  the  fact  was  charged. 

The  question  was  postponed  for  further  discussion,  on 
Mr.  Hay  pledging  himself,  that  no  evidence  should  be 
laid  before  the  grand  jury,  without  notice  being  first 
given  to  Colonel  Burr  and  his  counsel. 

MONDAY,  MAY  25,  1807. 

The  court  met  according  to  adjournment. 

The  grand  jury  appeared  in  court,  and  on  its  being 
stated  by  their  foreman,  that  they  had  been  two  days 
confined  to  their  chambers,  and  had  no  presentment  to 
make  or  bill  before  them,  Mr.  Hay  observed,  that  he  had 
two  bills  prepared,  but  wished  to  postpone  the  delivery  of 
them  till  the  witnesses  were  present,  and  it  was  ascer- 


1 6  TRIAL     OF    AARON    BURR. 

tained  that  all  the  evidence  relied  on  by  the  counsel  for 
the  prosecution  could  be  had.  He  thought  it  probable 
that  in  the  course  of  a  week  he  should  hear  of  General 
Wilkinson,  who  was  still  absent,  and  whose  testimony 
was  deemed  very  important. 

A  further  conversation  took  place,  as  to  the  propriety 
of  adjourning  the  grand  jury  to  a  distant  day  of  the  term, 
and  Monday  next  was  mentioned  as  the  time  when  they 
would  probably  be  required  to  attend. 

The  chief  justice  observed,  that  from  the  researches 
which  he  had  been  able  to  make,  he  was  still  inclined  to 
favor  the  opinion,  that  there  was  no  necessity  for  calling 
the  grand  jury  every  day.  This  opinion  was  the  result  of 
his  reflection  upon  principle,  not  formed  from  any  posi- 
tive authority  on  the  subject. 

Mr.  Wick  ham  having  stated,  that  as  a  number  of  wit- 
nesses were  attending  at  a  considerable  distance,  on  the 
part  of  Mr.  Burr,  it  might  be  important  to  know  when 
the  grand  jury  would  be  again  called. 

Mr.  Hay  observed,  that  a  motion  might  be  made, 
which  would  render  their  presence  necessary,  even  on 
that  day. 

Mr.  Wick  ham  then  requested,  that  before  any  order 
should  be  taken  in  relation  to  the  adjournment  of  the 
grand  jury,  the  counsel  for  the  United  States  might  state 
the  nature  and  object  of  his  motion. 

Mr.  Hay. — The  object  of  my  motion  is  to  commit  Mr. 
Burr,  on  a  charge  of  high  treason  against  the  United  States. 
On  his  examination  there  was  no  evidence  of  an  overt 
act,  and  he  was  committed  for  misdemeanor  only.  The 
evidence  is  different  now. 

Mr.  Wickham  hoped,  that  the  application  might  be 
made  and  counsel  heard. 

Mr.  Hay. — Gentlemen  may  be  assured  that  they  will 
be  apprised  of  the  application  ;  but  it  is  their  wish  that 
it  should  be  made,  and  the  subject  discussed  in  presence 
of  the  grand  jury  ? 

Mr.  Burr. — The  gentleman  has  mistaken  the  object  of 
my  counsel,  as  far  as  it  is  comprehended  in  my  motion. 
The  design  was  not  that  the  grand  jury  might  hear,  but 
that  the  impropriety  of  mentioning  the  subject  in 
presence  of  the  grand  jury,  might  be  made  more  manifest- 


MOTION     TO     COMMIT.  17 

I  think  it  may  be  demonstrated,  that  while  there  is  a 
grand  jury  attending,  before  whom  a  question  may  be 
determined,  there  is  an  obvious  impropriety  in  submit- 
ting it  to  any  other  tribunal  for  any  other  purpose. 

The  grand  jury  were  requested  to  withdraw. 

Mr.  Hay  renewed  his  application,  stating  more  at 
large  the  grounds  on  which  it  was  made;  and  moved  the 
court  to  commit  Mr.  Burr  on  a  charge  of  high  treason 
against  the  United  States,  on  the  evidence  formally  intro- 
duced, and  on  additional  testimony  to  be  now  brought 
forward. 

Mr.  Wickham  inquired  what  sort  of  evidence  was 
intended  to  be  introduced  :  whether  that  of  witnesses  to 
be  examined  viva  voce,  or  affidavits  in  writing  ?  Mr. 
Hay  answered,  that  where  the  witnesses  were  present  he 
intended  to  examine  them  viva  voce ;  but  where  they 
were  absent  to  make  use  of  their  affidavits  regularly  taken 
and  certified. 

Mr.  Botts. — We  may  have  cause  of  much  regret  that 
the  attorney  of  the  United  States  has  not  given  us  some 
previous  notice  of  this  application.  From  the  engage- 
ments between  the  prosecuting  and  defending  counsel, 
to  interchange  information  of  the  points  intended  to  be  . 
discussed,  we  had  a  right  to  expect,  that  upon  a  subject 
like  this,  involving  questions  ne*v  and  important,  we 
should  not  have  been  taken  by  surprise.  Indeed,  from 
the  common  courtesy  and  candor  of  the  attorney  of  the 
United  States,  we  might  have  reasonably  calculated  on 
a  previous  communication.  This  interchange  of  civility 
and  information,  usual  even  in  cases  of  inferior  import- 
ance, was  more  necessary  in  this  case,  because  the  appli- 
cation is  as  unfortified  by  precedents  as  it  is  unexpected; 
and  because  it  involves  questions  of  deep  consideration 
and  weighty  importance. 

Mr.  Hay  interrupted  Mr.  Botts. — Since  the  gentle- 
man complains  of  being  taken  by  surprise,  I  am  willing 
to  postpone  the  motion  till  to-morrow. 

Mr.  Botts. — Not  a  moment's  postponement.  Al- 
though we  sustain  considerable  inconvenience  by  being 
thus  suddenly  and  unexpectedly  called  upon,  without 
reflection  or  authorities,  yet  we  should  experience  great- 
er by  a  day's  delay.  I  shall  therefore  beg  leave  to  make 
i. — 2 


i8  TRIAL     OF    AARON    BURR. 

a  few  remarks  on  this  extraordinary  application,  and  the 
pernicious  effects  such  an  extraordinary  measure,  if  gen- 
erally practiced,  would  inevitably  produce.  The  organ 
particularly  appropriated  for  the  consideration  of  the 
evidence  which  this  motion  calls  for,  is  the  grand  jury  ; 
and  the  motion  is  to  divest  the  grand  jury  of  the  office, 
which  the  constitution  and  laws  have  appropriated  to 
them,  and  to  devolve  it  upon  the  court.  The  grand 
jurors'  oath  is  to  inquire  into  all  crimes  and  misdemean- 
ors committed  within  the  district  of  the  state  of  which 
they  are  freeholders.  Their  office  is  to  perform  that 
Avhich  the  court  is  now  called  upon  to  perform.  To 
them  belongs  the  exclusive  duty  of  inquiring  and  exam- 
ining into  all  species  of  evidence,  which  may  lead  to  a 
conviction  of  the  crime  of  which  Colonel  Burr  is  now 
charged  ;  but  there  is  a  great  objection  to  the  exercise 
of  this  examining  and  committing  power  by  a  high  law 
officer,  who  is  to  preside  upon  the  trial,  when  the  grand 
jury,  the  appropriate  tribunal,  is  in  session.  He  is 
obliged,  previously,  without  a  full  hearing  of  both  sides 
of  the  case,  to  commit  himself  upon  the  case  of  the  ac- 
cused. Every  one  will  agree,  that  a  judge  should,  if 
possible,  come  to  the  office  of  trial  as  free  from  prepos- 
session, as  if  he  had  never  heard  of  the  case  before.  It  is 
true,  that  when  a  grand  jury  is  not  embodied,  in  order 
to  avoid  a  failure  of  justice,  and  to  prevent  the  guilty 
from  escaping,  the  measure  which  the  gentleman  now 
proposes,  would  not  only  be  proper  but  necessary.  The 
examining  and  committing  office  of  the  judge  is,  in  such 
cases,  justified  by  the  necessity  of  the  case ;  but  then  it 
is  because  the  appropriate  body  of  inquest  is  not  impan- 
eled to  perform  the  office.  The  necessity  does  not  exist 
here.  This  novel  mode  of  proceeding  would  give  the 
attorney  for  the  United  States  the  chance  of  procuring 
an  opinion  from  the  court  unfavorable  to  'the  accused. 
Failing  in  that  chance,  he  would  then  resort  to  his  only 
legal  one — before  the  grand  jury.  Why  should  this 
court  step  out  of  its  ordinary  course  to  forestall  or 
influence  the  deliberations  of  the  grand  jury  and  the 
public  ?  The  motion  is  without  precedent,  or  reason  to 
warrant  such  a  precedent ;  it  is  oppressive  and  against 
all  principle  ;  it  is  unreasonable  and  oppressive,  that  the 


ARGUMENT.  19 

functions  of  the  grand  jury  should  be  suspended,  in  order 
that  the  court  should  assume  them.  Although  in  the 
absence  of  the  grand  jury,  it  would  be  proper  in  the  court 
to  determine  a  question  of  commitment,  yet  the  history 
of  our  criminal  jurisprudence  yields  no  instance  of  such 
a  motion  during  the  session  of  the  grand  jury.  I  did 
expect,  that  some  solitary  reason  would  have  been  given, 
by  the  gentleman  for  the  prosecution,  in  support  of  his 
motion  ;  I  did  expecf,  sir,  that  all  the  books  of  England 
would  have  been  ransacked ;  I  did  suppose,  sir,  that  the 
musty  pages  of  folios  and  quartos  would  have  been 
opened  to  support  his  argument ;  I  did  expect,  at  least,  sir, 
that  one  case  of  state  practice  would  have  been  produced. 
In  this  expectation  I  am  disappointed.  I  say  then,  sir, 
that  the  motion  before  the  court  is  without  precedent, 
unreasonable  in  its  nature,  inconvenient  in  its  effects, 
and  oppressive  in  its  end ;  of  a  piece  with  the  long 
course  of  oppression  which  has  been  practiced  against 
Colonel  Burr,  but  has  been  hitherto  unknown  in  this 
country  ;  unheard  of  in  any  country  which  enjoys  the 
blessings  of  freedom,  and  which,  I  trust,  will  never  again 
be  repeated  in  these  states. 

Colonel  Burr  appears  in  this  court  ready  to  go  on  with 
his  trial ;  he  wishes  no  delay ;  he  is  orjposed  to  every 
measure  which  may  occasion  delay  or  procrastinate  the 
business.  His  great  object  is  to  satisfy  his  country,  the 
minds  of  his  fellow-citizens,  and  even  his  prosecutors, 
that  he  is  innocent.  We  have  suffered  already  two  or 
three  days  to  pass  away  in  idle  discussion,  or  without 
doing  anything :  and  yet  we  are  told,  at  last,  after  the 
lapse  of  several  months ;  after  a  grand  jury  have  been 
convened  and  gone  into  their  room ;  after  attending 
with  great  inconvenience  to  themselves  and  expense  to 
the  state  ;  after  all  this,  we  are  told,  that  the  business  of 
commitment  is  again  to  be  gone  over;  that  the  evidence 
which  ought  to  be  given  to  the  grand  jury,  the  only  pro- 
per tribunal  at  this  time  for  its  consideration,  is  to  be 
submitted  to  the  court.  We  have,  sir,  made  enough  of 
sacrifices ;  we  have  been  deprived  of  our  legal  rights  ; 
our  person  and  papers  have  been  seized  ;  we  have  been 
subjected  to  a  military  persecution  unparalleled  in  this 
country  ;  given  into  the  custody  of  the  satellites  of  mili- 


to  TRIAL    OF    AARON    BURR. 

tary  despotism,  and  guarded  by  the  rigid  forms  of  mili- 
tary law  ;  surely  our  wrongs  ought  now  to  end.  It  was 
rumored  that  he  would  not  appear;  but  he  has  appeared. 
We  come  to  ask  a  legal  trial ;  an  examination  into  the 
charges  which  have  been  preferred  against  us.  The 
government  has  had  the  time  and  necessary  means  of 
preparation,  and  they  ought  to  be  prepared.  Our 
pleasure  was,  to  await  the  pleasure  of  the  prosecution, 
unless  that  pleasure  should  be  found  to  be  oppressive. 
But  we  are  told  now,  that  the  indictment  can  not  go  up ; 
but  in  the  mean  time  an  inquisition  must  be  held.  Per- 
mit me  to  advert  for  a  solitary  moment,  to  one  circum- 
stance. If  we  had  sought  every  legal  advantage,  our 
motion  would  have  preceded  theirs;  our  motion  would 
have  been,  that,  if  they  were  not  ready  to  present  their 
evidence  before  the  grand  jury,  Colonel  Burr  should  be 
discharged  from  the  recognizance  already  given. 

The  laws  of  congress  have  adopted  our  rules  and  prac- 
tice in  the  states,  in  proceedings,  upon  indictments  for 
misdemeanors.  You  were  of  opinion,  you  well  remem- 
ber, sir,  that  nothing  more  than  .  probable  cause  of 
suspecting  a  misdemeanor  appeared  against  Colonel 
Burr.  Even  after  an  indictment  in  Virginia  for  a  mis- 
demeanor, notking  more  than  a  summons  can  go  against 
a  person  indicted.  No  court  in  the  commonwealth,  ever 
permitted  a  capias  to  go  in  the  first  instance,  unless  the 
case  passed  siib  silentio.  Now,  arrest  and  bail  are  utterly 
incompatible  with  a  summons  ;  and  surely,  if  an  indictee 
can  not  be  arrested,  one  merely  suspected  can  not  be 
held  to  bail.  The  conduct  of  Judge  Chase,  in  award- 
ing a  capias  against  Callender,  was  the  subject  of  one  of 
the  charges  in  his  impeachment.  Mr.  Hay,  vehemently 
and  ably  contended,  that  a  summons  only  ought  to  have 
issued  against  him. 

I  know  that  the  court  may  have  an  impression  that  I 
am  wandering  from  the  subject.  I  will  soon  show  what 
application  the  recognizance  already  taken  has  to  the 
motion  to  examine  witnesses,  in  order  to  commit  for 
treason. 

Notwithstanding,  Colonel  Burr  was  committed  upon 
a  charge  of  misdemeanor,  when,  according  to  the  state 
laws,  he  would  not  have  been  committed,  a  public  preju- 


ARGUMENT.  21 

dice  has  been  excited  against  the  lenity  of  the  measure; 
and  attempts  have  been  made,  through  newspapers  and 
a  popular  clamor,  to  intimidate  every  officer  who  might 
have  any  concern  in  the  trial.  This  p-ublic  prejudice 
would  be  increased  by  the  present  motion  rather  than 
allayed,  if  the  necessary  explanation  should  not  be  made. 
The  multitude  around^us  must  hear  what  is  passing,  and 
we  can  not  submit  to  a  course  which  would  further  in- 
vest the  public  mind  with  poison  already  too  plentifully 
infused.  I  do  not  charge  the  attorney  of  the  United 
States  with  a  design  to  excite  or  increase  this  public 
prejudice;  but  I  know  it  will  be  increased,  unless  care 
be  taken  to  show  that  the  public  clamor  has  been 
groundless.  I  take  it  for  granted,  that  after  this  view  of 
the  subject,  whatever  motive  dictated  the  application,  it 
will  now  be  abandoned,  and  that  the  gentleman  will  with- 
draw his  motion.  I  will  not  weary  out  the  patience  of 
the  court;  but  conclude  by  saying,  that  I  sit  down  in 
anxious  hope,  that  the  success  of  this  motion  may  not 
add  to  the  catalogue  of  Colonel  Burr's  grievances. 

The  chief  justice  inquired  whether  the  counsel  for  the 
prosecution  intended  to  open  the  case  more  fully? 

Mr.  Hay  had  not  intended  to  open  it  more  fully;  he 
did  not  himself  entertain  the  least  doubt,  that  if  there 
was  sufficient  proof  produced  to  justify  the  commitment 
of  Colonel  Burr,  the  court  had  completely  the  right  to 
commit  him.  That  the  general  power  of  the  court  to 
commit,  could  not  be  questioned;  and  if  gentlemen 
contended,  that  it  ought  not  to  be  exercised  in  the 
present  case,  it  was  incumbent  on  them  to  show  it. 
That  Mr.  Botts,  himself,  had  not  denied  it.  That  his 
whole  argument  turned  on  the  question,  not  whether  the 
court  had  the  right,  but  whether  it  was  expedient  now 
to  exercise  it.  Its  expediency  depended  on  the  evi- 
dence ;  if  that  was  sufficient,  there  could  be  no  doubt  of 
the  power.  That  if  the  court  once  admitted,  as  an  ex- 
ception to  this  principle,  that  the  grand  jury  was  in 
session,  they  would  establish  a  precedent  fraught  with 
the  most  injurious  consequences. 

Mr.  Wickham. — It  certainly  would  have  been  an  ac- 
commodation to  us,  if  the  gentlemen  had  given  us  notice 
r»f  their  intended  motion.  We  come  into  this  discussion 


22  TRIAL     OF    AARON    BURR. 

completely  off  our  guard,  completely  unprepared  ;  and  it 
may  be  presume'd,  that  it  was  merely  an  omission  in  the 
opposite  counsel,  not  to  have  given  us  notice  of  the  mo- 
tion which  they  intended  to  bring  forward.  Because  it 
was  distinctly  understood  between  us  (by  an  argument 
made,  I  believe,  in  the  hearing  of  the  court),  that  if  any 
specific  motion  was  to  be  made  oji  either  side,  timely 
notice  of  its  nature  and  object  was  to  be  given.  I  am 
sorry  that  they  have  departed  from  their  agreement  in 
the  present  instance  ;  but  if  I  have  not  forgotten  every 
principle  of  law  which  I  ever  learnt,  every  principle  of 
common  justice,  this  motion  can  not  be  supported. 

Mr.  Hay. — The  gentleman  will  permit  me  to  set  him 
right.  He  might  have  relied  on  my  candor,  that  when  I 
was  about  to  lay  my  indictments  before  the  grand  jury, 
I  would  have  given  him  timely  notice  of  my  intention. 
They  might  then  have  moved  for  the  instruction  to  the 
jury,  which  they  are  so  anxious  to  obtain.  This  was  the 
only  understanding  between  us  on  the  subject ;  our 
agreement  extended  no  further  ;  much  less  to  the  par- 
ticular case  before  the  court.  On  the  other  hand,  there 
was  a  very  strong  reason  against  our  making  this  com- 
munication. I  feel  no  hesitation,  sir,  in  assigning  this 
reason  ;  and  I  hope  that  it  will  wound  neither  the  feel- 
ings of  the  prisoner  nor  of  his  counsel.  I  did  not  intend 
to  have  laid  it  before  the  court,  but  I  now  conceive  my- 
self called  upon  to  be  thus  explicit.  The  fact  is  this  :  Mr. 
Wilkinson  is  known  to  be  a  material  witness  in  this  pros- 
ecution ;  his  arrival  in  Virginia,  might  be  announced  in 
this  city,  before  he  himself  reached  it.  I  do  not  pretend 
to  say  what  effect  it  might  produce  upon  Colonel  Burr's 
mind ;  but  certainly,  Colonel  Burr  would  be  able  to  effect  his 
escape,  merely  upon  paying  the  recognizance  of  his  present 
bail.  My  only  object,  then,  was  to  keep  his  person  safe, 
until  we  could  have  investigated  the  charge  of  treason  ; 
and  I  really  did  not  know,  but  that  if  Colonel  Burr  had 
been  previously  apprised  of  my  motion,  he  might  have 
attempted  to  avoid  it.  But  I  did  not  promise  to  make 
this  communication  to  the  opposite  counsel,  because  it 
might  have  defeated  the  very  end  for  which  it  was  in- 
tended. I  have  said,  that  the  only  pledge  I  gave,  merely 
related  to  the  indictments  to  be  sent  up  to  the  grand  jury. 


ARGUMENT.  23 

Mr.  Wickham  observed  that  after  this  explanation,  he 
must  suppose,  that  he  had  misapprehended  the  extent 
of  their  agreement.  He  knew  the  gentleman  too  well 
to  think  that  he  had  intentionally  misled  him  ;  but  what 
could  he  think  of  the  motion  he  had  made?  It  was  a 
strange  episode  which  he  weaved  into  his  tale  ;  it  may  be 
good  poetry,  indeed,  but  it  was  not  certainly  proper 
matter  of  argument.  Every  man  who  hears  me,  every 
man  who  has  ever  read  on  the  subject,  must  know  what 
are  the  feelings  which  dictate  these  suspicions  of  Colonel 
Burr.  Some  mortification  was  felt  by  his  enemies  (not 
that  the  attorney  for  the  United  States,  himself,  ever 
felt  it),  that  he  returned  here  for  trial.  But  here  Colonel 
Burr  is,  and  always  will  be  ready  to  meet  every  charge 
they  may  think  proper  to  bring  against  him  ;  and  to  face 
every  man  who  dares  say  anything  against  him.  The 
gentleman  will  not  open  his  case,  and  why?  Because 
when  he  has  heard  our  arguments  against  his  motion,  he 
may  come  out  with  the  adverse  arguments  against  us. 
If  they  do  not  choose  to  open  their  case,  we  hope  the 
court  will  grant  us  the  right  of  concluding  the  argument. 

Here  a  desultory  conversation  ensued  upon  the  order 
of  proceeding. 

Mr.  Edmund  Randolph  observed,  that  the  power  of 
the  court  to  commit,  was  not  denied  ;  but  that  the  expe- 
diency of  committing,  while  a  grand  jury  was  in  session, 
was  denied  ;  that  it  was  improper  that  an  inquiry  which 
belonged  exclusively  to  that  body,  should  be  transferred 
to  the  court. 

Mr.  Hay  said  that  it  made  no  difference  in  law, 
whether  the  grand  jury  were  in  session  or  not ;  that  the 
grand  jury  being  in  session  could  not  deprive  the  court 
of  the  power  with  which  they  were  vested.  Let  me 
state  a  case,  said  Mr.  Hay.  Suppose  Colonel  Burr  had 
only  arrived  in  Richmond  this  morning,  instead  of 
having  been  brought  at  the  period  of  his  first  examina- 
tion, would  his  counsel  contend  that  the  court  would 
not  think  it  proper  to  commit  him,  instead  of  bringing 
the  question  immediately  before  the  grand  jury,  when 
the  prosecutor  was  not  furnished  with  the  necessary 
evidence  ?  This  is  precisely  the  case  at  present.  From 
additional  evidence,  which  has  come  into  my  possession 


24  TRIAL     OF    AARON    BURR. 

since  his  examination,  it  appears  to  me,  that  upon  a  dis- 
closure of  it  to  the  court,  they  will  see  proper  that  he 
should  be  committed  on  the  charge  of  treason  ;  but  to 
complete  this  evidence  still  more,  the  testimony  of  Gen- 
eral Wilkinson  is  essential;  and  until  his  arrival,  it  would 
be  improper  to  submit  jt  to  the  grand  jury  ;  although  it 
is  necessary  for  the  reasons  I  have  stated,  that  it  should 
be  submitted  at  present  to  the  court. 

Mr.  Wickham  meant  to  support  bis  arguments  on  the 
grounds  of  law  and  precedent :  he  read  the  revised  code 
of  Virginia,  page  103,  §  10,' which  he  contended  were 
plainly  in  his  favor.  He  observed,  that  the  present 
motion  was  unprecedented  in  a  system  of  criminal  juris- 
prudence, which  was  upwards  of  one  hundred  years  old. 
If  this  motion  be  a  proper  one,  there  must  be  some  pre- 
cedents in  this  country  or  in  England.  If  there  be  none 
such,  their  motion  can  not  be  supported  ;  and  as  the 
gentlemen  have  not  produced  them,  it  is  fair  to  infer, 
that  there  are  none  such.  It  is  therefore  obvious  that 
the  present  motion  is  contrary  to  the  acts  of  Virginia,  as 
well  as  to  the  common  law.  The  attorney  for  the 
United  States  says,  that  he  can  take  no  final  measures 
till  General  Wilkinson  is  present.  His  deposition  is 
greatly  relied  upon.  Now,  sir,  I  refer  to  you  as  well  as 
to  the  supreme  court  of  the  United  States,  where  you 
presided,  that  the  facts  contained  in  that  deposition  did 
not  amount  to  treason,  but  to  a  probable  proof  of  a  mis- 
deameanor  only.  As  to  General  Eaton's,  it  is  not  relied 
on  ;  the  sole  reliance  of  the  prosecution  is  on  Wilkin- 
son's; of  course,  if  Wilkinson  himself  were  present,  he 
would  prove  nothing  new.  But  if  General  Wilkinson  be 
so  material  a  witness,  why  are  they  not  prepared  'to  go 
with  him  before  the  grand  jury?  Why  is  he  not  here? 
He  is  a  military  officer,  bound  implicitly  to  obey  the 
head  of  the  government.  In  the  war  of  Europe,  a 
general  has  been  known  to  march  the  same  distance  at 
the  head  of  his  army,  in  a  shorter  time  than  General 
Wilkinson  has  had  to  pass  from  New  Orleans  to  this 
place.  He  is  bound  to  go  wherever  the  government 
directs  him;  to  march  to  Mexico  ;  to  invade  the  Floridas  ; 
or  to  come  to  this  city.  Perhaps  there  are  other  reasons 
for  his  not  coming,  but  let  us  not  press  this  subject. 


ARGUMENT.  ?5 

What,  sir,  is  the  tendency  of  this  application  ?  What 
is  the  motive  ?  I  have  no  doubt  the  gentle  men  mean 
to  act  correctly.  I  wish  to  cast  no  imputation  ;  but  the 
counsel  and  the  court  well  know  that  there  are  a  set  of 
busy  people  (not,  I  hope,  employed  by  the  government), 
who,  thinking  to  do  right,  are  laboring  to  ruin  the  repu- 
tation of  my  client.  I  do  not  charge  the  government 
with  this  attempt ;  but  the  thing  is  actually  done.  At- 
tempts have  been  made.  The  press,  from  one  end  of 
the  continent  to  the  other,  has  been  enlisted  on  their 
side  to  excite  prejudices  against  Colonel  Burr.  Preju- 
dices ?  Yes,  they  have  influenced  the  public  opinion  by 
such  representations,  and  by  persons  not  passing  between 
the  prisoner  and  his  country,  but  by  ex  parte  evidence 
and  mutilated  statements.  Ought  not  this  court  to  bar 
the  door,  as  much  as  possible,  against  such  misrepresen- 
tations? to  shut  out  every  effort  to  excite  further  preju- 
dices, until  the  case  is  decided  by  a  sworn  jury?  not  by  the 
floating  rumors  of  the  day,  but  by  the  evidence  of  sworn 
witnesses?  The  attorney  for  the  United  States  offers 
to  produce  his  testimony;  no  doubt,  the  most  violent  ; 
no  doubt,  the  least  impartial  which  he  can  select  ;  testi- 
mony, which  is,  perhaps,  to  be  met  and  overthrown  by 
superior  evidence.  Do  they,  besides,  •  wish  that  the 
multitude  around  us  should  be  prejudiced  by  garbled 
evidence  ?  Do  precedents  justify  such  a  course  as  this  ? 
Produce  your  witnesses,  they  may  say.  No,  sir,  Colonel 
Burr  is  ready  for  a  trial ;  but  he  wishes  that  trial  to  come 
before  a  jury.  I  do  not  pretend  to  understand  the 
motives  which  led  to  those  things;  it  is  enough,  that 
they  produce  these  mischievous  effects  upon  ourselves. 
Should  government,  hereafter,  wish  to  oppress  any 
individual  ;  to  drag  him  from  one  end  of  the  country  to 
the  other  by  a  military  force  ;  to  enlist  the  prejudices  of 
the  country  against  him ;  they  will  pursue  the  very 
same  course  which  has  now  been  taken  against  Colonel 
Burr.  He  is  here  ready  for  trial.  They  admit  that  their 
testimony  is  not  sufficient  to  bring  him  before  the  grand 
jury,  and  of  course,  to  find  an  indictment  against  him. 
Why,  then,  is  this  partial  evidence  to  be  exhibited  on  a 
motion  for  commitment  ?  It  is  to  nourish  and  keep 
alive  the  prejudices  already  circulated  against  him.  WilJ 


26  TRIAL     OF    AARON    BURR. 

they,  then,  press  a  motion  like  this?  Be  it  so.  I  hope 
the  motion  will  be  rejected,  and  that  the  court  will  stand 
between  the  innocent  and  his  pursuers  ;  for  every  man 
is  presumed  to  be  innocent,  before  he  is  found  guilty. 

Mr.  Wirt. — May  it  please  your  honors, 

The  attorney  for  the  United  States,  believing  himself 
possessed  of  sufficient  testimony  to  justify  the  commit- 
ment of  Aaron  Burr  for  high  treason,  has  moved  the 
court  to  that  effect.  In  making  this  motion,  he  has 
merely  done  his  duty.  It  would  have  been  unpardon- 
able in  him  to  omit  it ;  yet  the  counsel  for  the  defense 
complain  of  the  motion  and  the  want  of  notice.  As  to 
the  latter  objection,  it  must  be  palpable,  that  the  nature 
and  object  of  the  motion  rendered  notice  improper. 
The  gentlemen  would  have  the  attorney  to  announce  to 
the  party  accused,  that  he  was,  at  length,  in  possession 
of  sufficient  evidence  to  justify  his  commitment  for 
high  treason  ;  and,  that  being  apprehensive  he  might  not 
be  disposed  to  stand  this  charge,  he  intended,  as  soon  as 
the  accused  came  into  court  next  morning,  to  move  his 
commitment !  This  would  really  be  carrying  politeness 
beyond  its  ordinary  pitch.  It  would  not  have  deserved 
the  name  of  candor,  sir  ;  it  would,  in  fact,  have  been  an 
invitation  to  the  accused  to  make  his  escape.  But,  as 
gentlemen  seem  to  doubt,  at  least  with  an  air  of  some 
earnestness,  the  propriety  of  this  motion  at  this  time, 
and  express  their  regret  that  they  have  not  had  time  to 
examine  its  legality,  the  attorney  has  offered  to  waive 
the  motion  until  to-morrow,  to  give  gentlemen  the 
opportunity  which  they  profess  to  desire  ;  but  no,  sir, 
they  will  not  even  have  what  they  say  they  want,  when 
offered  by  the  attorney.  Another  gentleman,  after  hav- 
ing demanded  why  this  motion  was  made,  and  by  that 
demand  drawn  from  the  attorney  an  explanation  of  his 
motives,  has  been  pleased  to  speak  of  the  attorney's 
statement,  of  his  apprehensions,  as  an  episode,  which 
"  though  good  poetry,"  he  says,  "  had  better  have  been 
let  alone,  when  such  serious  matters  of  fact  were  in  dis- 
cussion." It  may  be  an  episode,  sir  ;  if  the  gentleman 
pleases,  he  is  at  liberty  to  consider  the  whole  trial  as  a 
piece  of  epic  action,  and  to  look  forward  to  the  appro- 
priate catastrophe.  But  it  does  not  appear  to  me  to  be 


ARGUMENT.  27 

very  fair,  sir,  after  having  drawn  from  the  attorney  an 
explanation  of  his  motives,  to  complain  of  that  ex- 
planation :  if  a  wound  has  been  inflicted  by  the  expla- 
nation, the  gentlemen  who  produced  it,  should  blame 
only  themselves.  But,  sir,  where  is  the  crime  of  con- 
sidering Aaron  Burr  as  subject  to  the  ordinary  operation 
of  the  human  passions?  Towards  any  other  man,  it 
seems,  the  attorney  would  have  been  justifiable  in  using 
precautions  against  alarms  and  escapes  ;  it  is  only  im- 
proper when  applied  to  this  man.  Really,  sir,  I  recol- 
lect nothing  in  the  history  of  his  deportment,  which 
renders  it  so  very  incredible,  that  Aaron  Burr  would  fly 
from  a  prosecution.  But  at  all  events,  the  attorney  is 
bound  to  act  on  genera'  principles,  and  to  take  care  that 
justice  be  had  against  every  person  accused,  by  whatever 
name  he  may  be  called,  or  by  whatever  previous  reputa- 
tion he  may  be  distinguished.  This  motion,  however, 
it  seems,  is  not  legal,  at  this  time,  because  there  is  a 
grand  jury  in  session.  The  amount  of  the  position  is, 
that  though  it  may  be  generally  true,  that  the  court 
possesses  the  power  to  hear  and  commit,  yet,  if  there  be 
a  grand  jury,  this  power  of  the  court  is  suspended;  and 
the  commitment  can  not  be  had  unless  in  consequence 
of  a  presentment  or  bill  of  indictment  found  by  that 
body.  The  general  power  of  the  court  being  admitted, 
those  who  rely  on  this  exception,  should  support  it  by 
authority ;  and  therefore,  the  loud  call  for  precedents, 
which  we  have  heard  from  the  other  side,  comes  im- 
properly from  that  quarter.  We  ground  this  motion  in 
the  general  power  of  the  court  to  commit ;  let  those 
who  say  that  this  general  power  is  destroyed  by  the 
presence  of  a  grand  jury,  show  one  precedent  to 
countenance  this  original  and  extraordinary  motion.  I 
believe,  sir,  I  may  safely  affirm,  that  not  a  single  re- 
ported case  or  dictum  can  be  found,  which  has  the  most 
distant  bearing  towards  such  an  idea.  Sir,  no  such 
dictum  or  case  ought  to  exist.  It  would  be  unreason- 
able and  destructive  of  the  principles  of  justice;  for  if 
the  doctrine  be  true  at  all,  that  the  presence  of  a  grand 
jury  suspends  the  power  to  hear  and  commit  by  any  other 
authority,  it  must  be  uniformly  and  universally  true  in 
every  other  case  as  well  as  this,  and  in  every  case  Which  , 


28  TRIAL     OF    AARON    BURR. 

can  be  proposed  while  a  grand  jury  is  sitting.  Now,  sir, 
let  us  suppose,  that  immediately  on  the' swearing  of  this 
grand  jury,  and  their  retiring  to  their  chamber,  Aaron 
Burr  had  for  the  first  time  been  brought  to  this  town  ; 
the  members  of  the  evidence  scattered  over  the  conti- 
nent ;  the  attorney,  however,  in  possession  of  enough 
to  justify  the  arrest  and  commitment  of  the  accused 
for  high  treason,  but  not  enough  to  authorize  a  grand 
jury  to  find  a  true  bill.  What  is  to  be  done?  The 
court  disclaims  any  power  to  hear  and  commit,  because 
there  is  a  grand  jury ;  the  grand  jury  can  not  find  a  true 
bill,  because  the  evidence  is  not  sufficient  to  warrant 
such  a  finding  ;  the  natural  and  unavoidable  conse- 
quence would  be,  that  the  man  must  be  discharged,  and 
then,  according  to  Mr.  Wickham's  principles  of  ethics, 
that  every  man  must  be  supposed  to  intend  the  natural 
consequences  of  his  own  acts,  the  gentlemen  who 
advocate  this  doctrine  intend  that  Aaron  Burr  shall  be 
discharged  without  a  trial. 

I  beg  you,  sir,  to  recollect  what  was  said  by  gentle- 
men the  other  day,  when  you  were  called  upon  to  give 
an  additional  charge  to  the  grand  jury.  You  were  told 
that  a  grand  jury  should  require  the  same  evidence  to 
find  a  true  bill,  which  a  petit  jury  would  require  to  con- 
vict the  prisoner.  Connect  this  principle  with  the  doc- 
trine in  question  :  the  sitting  of  the  grand  jury  suspends 
all  power  to  convict  by  any  other  body,  and  the  grand 
jury  can  not  find  a  true  bill,  unless  on  evidence  on  which 
they  would  convict  as  a  petit  jury:  connect  these  two 
principles,  and  consider  the  immaturity  of  evidence, 
which  always  exists  at  the  period  of  arrest  and  commit- 
ment:  and  the  sitting  of  the  grand  jury,  instead  of  being 
a  season  of  admonition  and  alarm,  becomes  a  perfect 
jubilee  to. the  guilty.  But  it  is  said,  that  this  is  "  an  at- 
tempt to  divest  the  constitutional  organ  of  its  justand  pro- 
per power."  I  believe,  sir,  it  was  never  before  heard,  that 
an  application  to  commit  for  safe  keeping,  was  an  encroach- 
ment on  the  power  of  the  grand  jury.  Would  the  gen- 
tlemen have  us  to  address  this  motion  to  the  grand  jury? 
they  might  as  well  propose,  that  we  should  submit  the 
bill  of  indictment  to  the  court,  and  desire  them  to  say, 
whether  it  is  a  true  bill  or  not  ?  This  would  be  indeed, 


ARGUMENT.  29 

• 

the  "  shifting  of  powers,"  of  which  the  gentleman  com- 
plains. As  it  is,  sir,  there  is  no  manner  of  collision 
between  the  power  which  we  call  upon  the  court  to 
exercise,  and  the  proper  power  of  the  grand  jury.  The 
justices  arrest  and  commit,  for  safe  keeping;  then  comes 
the  function  of  the  grand  jury,  to  decide  on  the  truth  of 
the  indictment  exhibited  against  the  prisoner.  The  two 
offices  are  distinct  in  point  of  time,  and  totally  different 
in  their  nature  and  objects.  But  it  is  said,  that  "  there 
is  a  great  inconvenience  in  submitting  a  great  law  officer 
to  the  necessity  of  expressing  an  opinion  on  the  crime, 
on  a  motion  like  this — that  the  judge  like  the  juror, 
should  come  to  the  trial  "  with  his  mind  pure  and  un- 
biassed." This  argument  does  not  apply  to  the  legality 
of  the  power,  which  we  call  upon  the  court  to  exercise  ; 
it  goes  merely  to  the  expediency  of  exercising  it ;  and  if 
the  argument  be  true,  the  court  ought  never  to  commit, 
whether  the  the  grand  jury  be  sitting  or  not.  This,  how- 
ever, sir,  is  a  matter  for  legislative,  not  for  judicial  con- 
sideration. Whenever  the  legislature  shall  decide,  by 
the  force  of  this  argument,  that  the  court  which  commits 
shall  not  sit  on  the  trial  in  chief,  a  motion  like  this  will 
become  improper.  At  present  however,- the  legislature 
has  left  this  power  with  the  court,  and  we  claim  its  exer- 
cise for  considerations  of  the  most  serious  importance  to 
truth  and  justice. 

But,  sir,  we  are  told  that  this  investigation  is  cal- 
culated to  keep  alive  the  public  prejudices;  and  we  hear 
great  complaints  about  these  public  prejudices.  The 
country  is  represented  as  being  filled  with  misrepresenta- 
tions and  calumnies  against  Aaron  Burr;  the  public 
indignation,  it  is  said,  is  already  sufficiently  excited. 
This  argument  is  also  inapplicable  to  our  right  to  make 
this  motion  ;  it  does  not  affect  the  legality  of  our  pro- 
cedure. But  if  the  motion  is  likely  to  have  this  effect, 
we  can  not  help  it.  No  human  institution  is  free  from 
inconveniences;  the  course  we  hold  is  a  legal  one,  a 
necessary  one:  we  think  it  a  duty.  It  is  no  answer  to 
us  to  say,  that  it  may  produce  inconveniences  to  the 
prisoner.  But  let  us  consider  this  mournful  tale~of  pre- 
judices, and  the  likelihood  of  their  being  excited  by  this 
motion.  Sir,  if  Aaron  Burr  be  innocent,  instead  of 


3o  TRIAL     OF    AARON    BURR. 

resisting  this  motion,  he  ought  to  hail  it  with  triumph 
and  exultation.  What  is  it  that  we  propose  to  intro- 
duce? not  the  rumors  that  are  floating  through  the 
world,  nor  the  bulk  of  the  multitude,  nor  the  specula- 
tions of  newspapers ;  but  the  evidence  of  facts.  We 
propose,  that  the  whole  evidence,  exculpatory  as  well  as 
accusative,  shall  come  before  you  ;  instead  of  exciting, 
this  is  the  true  mode  of  correcting  prejudices.  The 
world,  which  it  is  said  has  been  misled  and  inflamed  by 
falsehood,  will  now  hear  the  truth.  Let  the  truth  come 
out,  let  us  know  how  much  of  what  we  have  heard  is 
false,  how  much  of  it  is  true  ;  how  much  of  what  we  feel 
is  prejudice,  how  much  of  it  is  justified  by  fact.  Who- 
.ever  before  heard  of  such  an  apprehension  as  that  which 
is  professed  on  the  other  side?  prejudice  excited  by  evi- 
dence! Evidence,  sir,  is  the  great  corrector  of  preju- 
dice. Why,  then,  does  Aaron  Burr  shrink  from  it  ?  It 
is  strange  to  me  that  a  man,  who  complains  so  much  of 
being,  without  cause,  illegally  seized  and  transported  by 
a  military  officer,  should  be  afraid  to  confront  this  evi- 
dence ;  evidence  can  be  promotive 'only  of  truth.  I 
repeat  it,  then,  sir,  why  does  he  shrink  from  evidence? 
The  gentlemen  on  the  other  side  can  give  the  answer. 
On  our  part,  we  are  ready  to  produce  that  evidence. 
Permit  me  now,  sir,  to  turn  to  the  act  of  assembly  which 
has  been  read  by  Mr.  Wickham.  Into  what  embarrass- 
ments must  the  ingenious  and  vigorous  mind  of  that 
gentleman  have  been  driven,  before  he  would  have  taken 
refuge  under  this  act  of  assembly?  It  is  but  to  read  it 
to  see  that  it  has  no  manner  of  application  whatever  to 
this  motion  ;  that  it  applies  to  the  case  of  a  person 
already  committed  ;  declaring  that  such  a  person  shall 
be  bailed,  if  not  indicted  at  the  first  term  after  his  com- 
mitment, and  discharged  if  not  indicted  at  the  second 
term.  Revised  code,  page  103,  §  10.  It  begins  thus  : 
"  When  any  person  committed  for  treason." — Now.  sir, 
is  Aaron  Burr  committed  for  treason  ?  If  not,  it  is 
obvious  that  the  clause  has  no  manner  of  application  to 
him.  Why,  sir,  the  object  of  this  motion  is  to  commit 
him  ;  gentlemen  must  have  been  in  strange  confusion 
when  they  resorted,  to  this  law.  Mr.  Wickham  asks  if 
General  Wilkinson  be  a  material  witness,  why  he  is  not 


ARGUMENT.  31 

here  ?  Who  is  General  Wilkinson  ?  says  that  gentle- 
man. Is  he  not  the  instrument  of  the  government, 
bound  to  a  blind  obedience?  I  am  sorry  for  this  and 
many  other  declamatory  remarks  which  have  been  un- 
necessarily and  improperly  introduced  ;  but  the  gentle- 
man assures  us,  that  no  imputation  is  meant  against  the 
government.  Oh,  no,  sir;  Colonel  Burr  indeed  has  been 
oppressed,  has  been  persecuted  ;  but  far  be  it  from  the 
gentleman  to  charge  the  government  with  it.  Colorfel 
Burr  indeed  has  been  harassed  by  a  military  tyrant,  who 
is  "  the  instrument  of  the  government  bound  to  a  blind 
obedience  ;"  but  the  gentleman  could  not  by  any  means 
be  understood  as  intending  to  insinuate  aught  to  the 
prejudice  of  the  government.  The  gentleman  is  under- 
stood, sir ;  his  object  is  correctly  understood.  He 
would  divert  the  public  attention  from  Aaron  Burr,  and 
point  it  to  another  quarter.  He  would,  too,  if  he  could, 
shift  the  popular  displeasure  which  he  has  spoken  of, 
from  Aaron  Burr  to  another  quarter.  These  remarks 
were  not  intended  for  your  ears,  sir  ;  they  were  intended 
for  the  people  who  surround  us ;  they  can  have  no  effect 
upon  the  mind  of  the  court.  I  am  too  well  acquainted 
with  the  dignity,  the  firmness,  the  illumination  of  this 
bench,  to  apprehend  any  such  consequence.  But  the 
gentlemen  would  balance  the  account  of  popular  preju- 
dices ;  they  would  convert  this  judicial  inquiiy  into  a 
political  question  ;  they  would  make  it  a  question  be- 
tween Thomas  Jefferson  and  Aaron  Burr.  The  purpose 
is  well  understood,  sir  ;  but  it  shall  not  be  served.  I 
will  not  degrade  the  administration  of  this  country  by 
entering  on  their  defense.  Besides,  sir,  this  is  not  our 
business ;  at  present  we  have  at\  account  to  settle,  not 
between  Aaron  Burr  and  Thomas  Jefferson,  but  between 
Aaron  Burr  and  the  laws  of  his  country.  Let  us  finish 
his  trial  first.  The  administration,  too,  will  be  tried 
before  their  country ;  before  the  world.  They,  sir,  I 
believe,  will  never  shrink,  either  from  the  evidence  or  the 
verdict.  Let  us  return  to  Aaron  Burr.  "  Why  is  not 
General  Wilkinson  here?"  Because  it  was  impossible  in 
the  nature  of  things  for  him  to  be  here  by  this  time.  It 
was  on  the  first  of  April  that  you  decided  on  the  com- 
mitment of  Aaron  Burr  for  the  misdemeanor;  until  that 


32  TRIAL     OF    AARON    BURR. 

decision  was  known,  the  necessity  of  summoning  wit* 
nesses  could  not  be  ascertained.  General  Wilkinson  is 
the  commander-in-chief  of  the  American  troops,  in  a 
quarter  where  his  presence  is  rendered  important  by  the 
temper  of  the  neighborhood;  to  summon  him  on  the 
mere  possibility  of  commitment  would  have  afforded  a 
ground  of  clamor,  perhaps  a  just  one,  against  the  admin- 
istration. The  certainty  that  Aaron^Burr  would  be  put 
upon  his  trial,  could  not  have  been  known  at  Washing- 
ton till  the  5th  or  6th  of  April.  Now,  sir,  let  the  gentle- 
men on  the  other  side  make  a  slight  calculation.  Or- 
leans is  said  to  be  1500  or  1600  miles  from  this  place. 
Suppose  the  United  States'  mail  traveling  by  a  frequent 
change  of  horses  and  riders,  a  hundred  miles  per  day, 
shpuld  reach  Orleans  in  17  days  from  the  federal  city,  it 
would  be  the  24th  or  25th  of  April  (putting  all  accidents 
out  of  the  question)  before  General  Wilkinson  could  have 
received  his  orders  to  come  on.  Since  that  time  until 
this,  he  has  had  thirty  days  to  reach  Richmond.  Could 
a  journey  of  1500  or  1600  miles  be  reasonably  performed 
in  thirty  days?  Who  can  bear  a  journey  of  50  miles  per 
day  for  thirty  days  together?  But,  sir,  General  Wilkin- 
son is  not  here  ;  due  means  have  been  used  to  bring  him 
hither  ;  his  materiality  is  ascertained  by  his  affidavit, 
and  the  attorney  does  not  choose  to  send  up  the  indict- 
ment in  his  absence.  But  we  admit,  it  seems,  that  we 
are  not  ready  to  make  good  our  charge.  In  my  opinion 
there  is  evidence  enough  to  prove  the  treason  indepen- 
dently of  General  Wilkinson.  But  it  is  important  in 
every  point  of  view,  that  that  gentleman  should  be  here. 
It  is  important  to  his  own  reputation  ;  it  is  important  to 
the  people  of  the  United  States  that  he  should  be  here  ; 
and  on  the  part  of  the  grand  jury,  sir,  there  is  no  calcu- 
lating what  inferences  unfavorable  to  the  prosecution 
might  be  drawn  from  the  mere  circumstance  of  his 
absence.  The  attorney  is  therefore,  in  my  opinion,  very 
right  not  to  hazard  the  justice  and  the  fair  trial  of  this 
case,  by  sending  'up  the  indictment  in  General  Wilkin- 
son's absence. 

But  it  seems  that  Wilkinson's  affidavit  has  been 
already  decided  to  have  no  relation  to  the  charge  of 
treason.  To  what  General  Wilkinson's  affidavit  tended 


ARGUMENT.  33 

while  it  was  inomalated,  insulated,  or  connected  only 
with  that  of  General  Eton,  is  no  proof  of  what  its  ten- 
dency may  be  now,  in  connection  with  the  great  mass 
of  additional  testimony  which  we  have  collected.  Sir,  > 
we  say  that  it  is  the  key-stone  which  binds  the  great 
arch  of  evidence  now  in  our  possession.  As  to  sending 
up  the  indictment,  it  is  out  of  the  question  ;  truth  and 
justice  require  that  it  should  not  now  be  sent  up.  But 
we  hope,  sir,  that  the  motion  to  commit  Aaron  Burr 
will  be  received,  because  we  think  it  not  only  a  legal, 
but  also  a  just  and  necessary  measure  of  precaution.. 

Mr.  Hay. — On  this  occasion,  I  beg  leave  to  make  one 
or  two  preliminary  remarks.  I  stand  here  engaged  in 
the  performance  of  a  very  serious  duty.  The  duty  I 
have  to  perform  is,  indeed,  most  serious  and  important. 
The  subject  now  before  us  is  one  which  deeply  affects 
the  character  of  the  government ;  and  the  charge  is 
the  most  solemn  and  interesting  that  can  be  exhibited 
against  any  individual.  The  motion  I  have  to  make  is, 
that  Aaron  Burr  may  be  committed  on  a  charge  of 
treason  against  the  United  States  ! 

Sir,  it  was  natural  to  suppose,  that  such  a  serious 
charge  would  have  made  a  most  serious  impression 
upon  Aaron  Burr's  mind  ;  that  he  would  have  roused 
all  the  energies  of  his  understanding  in  his  service,  in 
vindicating  himself,  and  not  in  casting  imputations  upon 
the  government.  Why,  then,  does  he  turn  from  defend- 
ing himself  to  attack  the  administration  ?  Why  these 
complaints  of  persecution  which  have  fatigued  our  ears  ? 
I  most  solemnly  deny  the  charge.  I  most  confidently 
avow,  that  there  is  not  a  tittle  of  evidence  to  support  it. 
None  can  be  produced,  unless  it  be  a  persecution,  that 
the  government  brings  him  before  a  legal  tribunal, 
where  his  guilt  or  innocence  will  be  impartially  estab- 
lished. Aaron  Burr  stands  accused  of  the  'highest 
crimes  and  misdemeanors;  he  stands  charged  with  a 
deliberate  design  of  involving  his  country  in  all  the 
horrors  of  a  civil  insurrection,  or  of  entangling  her  in  a 
war  with  a  foreign  nation.  This  is  the  true  question 
before  the  court ;  and  instead  of  meeting  this  charge 
with  the  energy  and  firmness  which  became  him  ;  in- 
stead of  confronting  it  with  his  evidence,  he  complains 
x.— 3 


34  TRIAL     OF    AARON    BURR. 

forsooth  of  persecution !  And  where,  sir,  is  this  tre- 
mendous persecution  ?  "  Because  he  was  sent  here  by 
a  military  authority  ?"  But  Aaron  Burr  has  been  tried 
in  the  country  where  he  was  arrested  ?  Was  Blanner- 
hasset's  island  in  the  Mississippi  territory?  Or  ought  he 
not  to  have  been  conveyed  to  that  judicial  district, 
which  possessed  a  competent  jurisdiction  ?  But  if  Aaron 
Burr  ought  to  have  been  sent  hither,  by  what  number 
of  men  should  he  have  been  escorted  ?  Was  it  by  one 
man  only;  from  whom  he  could  have  been  so  easily 
rescued,  and  whose  vigilance  he  could  most  probably  have 
eluded  ?  Or  ought  he  to  have  been  conveyed,  as  he 
really  was.  by  the  energy  of  men,  like  Perkins,  whose  un- 
shrinking firmness,  and  whose  humanity  (in  the  presence 
of  Aaron  Burr,  himself,  I  avow  it,  let  him  deny  it  if  he 
can),  had  completely  qualified  him  for  the  safe  trans- 
portation of  his  prisoner?  But,  sir,  when  this  cry  and 
yell  of  persecution  is  once  excited,, it  is  not  easy  to  set 
bounds  to  its  fury.  Not  contended  with  inveighing 
against  the  pretended  persecution  of  the  government, 
a  government  which  never  did  persecute,  a  govern- 
ment which  can  not  persecute,  and  which  will  forever 
stand  firm  in  the  affections  of  the  people,  from  the 
integrity  and  intelligence  which  mark  its  measures. 
Not  contented  with  lavishing  their  complaints  against 
the  government,  the  counsel  for  the  prisoner  have  even 
turned  against  the  humble  instruments  who  conduct 
the  prosecution.  They  seriously  complain,  that  we 
have  given  them  no  previous  notice  of  this  motion  ;  and 
these  are  the  very  men  who  have  so  often  offered  mo- 
tions to  this  court,  without  the  slightest  intimation  to 
ourselves.  Sir,  I  most  positively  assert,  that  no  notice 
in  the  present  case  ought  to  have  been  given.  I  shall 
not  pretend  to  assert  that  Aaron  Burr  was  disposed, 
under  the  present  state  of  things,  to  effect  his  escape. 
But  I  say  that  supposing  such  to  have  been  the  fact, 
and  supposing  that,  availing  himself  of  the  information 
which  we  had  imparted,  he  should  have  taken  flight  ;  I 
appeal  to  the  candor  of  every  impartial  man  ;  I  appeal 
to  the  candor  of  the  opposite  counsel  themselves, 
whether  I  should  not  have  been  guilty  of  a  most  gross 
violation  of  my  duties? 


ARGUMENT.  35 

But  they  say  he  ought  not  to  be  committed,  because 
the  presence  of  the  grand  jury  suspends  the  authority  of 
this  court.  But  where  are  the  precedents  which  justify 
this  position  ?  I  have  not  made  many  researches  into 
this  case,  because  I  did  not  suppose  that  there  was  a 
single  skeptic  at  this  bar  who  would  deny  the  universality 
of  the  proposition  that  we  have  laid  down — that  it  was 
the  right  of  the  court  to  commit  in  every  case  where 
they  deemed  it  proper.  They  say  that  in  this  case,  the 
power  of  the  grand  jury  and  the  court  are  concurrent. 
Strange  that  they  should  forget  the  immense  difference 
between  their  powers  !  the  evidence  which  is  sufficient 
before  the  latter,  is  widely  different  from  that  which  is 
necessary  to  be  produced  to  the  former.  The  testimony 
requisite  to  induce  the  court  to  commit  the  person 
accused  is  less  than  we  are  bound  to  submit  to  the  grand 
jury,  and  much  less  than  that  which  alone  is  admissible  be- 
fore the  petit  jury.  I  will  quote  the  authority  of  the  gen- 
tlemen against  themselves.  They  say  that  stronger 
evidence  is  necessary  before  the  grand  jury  than  before  a 
court  for  the  examination  of  a  prisoner.  I  think  differ- 
ently myself;  but  certain  it  is,  that  affidavits  are  not 
admissible  to  be  sent  to  the  grand  jury;  although  they 
may  be  used  to  convince  the  court  that  it  is  proper  to 
commit.  For  my  part,  I  think  we  are  already  in  pos- 
session of  viva  voce  evidence  not  only  sufficient  to  com- 
mit Colonel  Burr,  but  to  induce  the  grand  jury  to  find 
in  favor  of  both  the  indictments  ;  but  I  will  boldly  in- 
quire, whether  I  should  discharge  my  honest  duty,  were 
I  to  submit  my  indictments  before  the  grand  jury  at 
this  moment,  when  I  have  not  all  the  material  evidence 
which  we  may  possess  ?  Sir,  these  gentlemen  may  cast 
their  groundless  censures  upon  me;  but  in  vain;  all 
their  clamors  will  never  move  me  from  my  purpose. 
The  course  which  I  am  pursuing  is  sufficient  to  satisfy 
my  own  conscience;  and  it  is  indifferent  to  me  whether 
ten  or  ten  thousand  men  should  join  in  my  condem- 
nation. 

Mr.  Botts  asserts  that  we  have  produced  no  authori- 
ties to  prove  our  position  ;  and  that  we  have  none  to 
produce.  But  is  it  right  to  be  continually  recurring  to 
precedents  ?  Is  there  no  allowance  to  be  made  for  the 


36  TRIAL    OF    AARON    BURR. 

operations  of  common  sense,  in  any  case  ?  Where  cases  of 
doubt  and  difficulty  occur,  a  reference  of  this  kind  is  cer- 
tainly propeY  to  enlighten  and  fortify  our  own  judgments. 
But  even  admitting  the  propriety  of  introducing  prece- 
dents in  the  whole  extent  for  which  gentlemen  contend, 
it  is  their  business  and  not  ours  to  comply  with  the 
-requisition  for  precedents.  We  stand  upon  the  broad, 
general  principle,  that  courts  have  the  power  to  commit. 
If  gentlemen  confess  this  principle  in  the  present  case, 
why  do  they  not  introduce  their  countervailing  author- 
ities? 

I  regret  that  my  duty  did  not  permit  me  to  give  my 
friend  Mr.  Wickham  notice  of  this  motion,  that  he  might 
have  more  seriously  meditated  upon  the  subject  before 
he  urged  his  objections.  If  he  understood  it  with  his 
usual  correctness,  he  never  would  have  troubled  the 
court  with  the  law  of  Virginia :  for  this  law  has  not  the 
slightest  bearing  upon  the  specific  proposition  before 
you. 

Mr.  Wickham  inquires  why  we  do  not  at  once  send  up 
our  indictments  before  the  grand  jury?  Suppose,  sir, 
we  should  pursue  the  course  which  he  recommends; 
suppose  we  should  send  up  our  indictments  on  the  evi- 
dence which  is  now  in  our  possession  ;  several  days 
might  elapse  before  they  would  be  able  to  investigate 
this  body  of  evidence.  In  the  meantime,  some  of  those 
numerous  persons,  who  are  prying  into  every  hole  and 
corner  of  this  city,  might  probably  catch  some  distant 
hint  of  the  probable  decision  of  the  jury.  They  have 
certainly  too  much  discretion  not  to  keep  their  own 
counsel;  but  it  is  absolutely  impossible  to  exclude  com- 
pletely the  busy  eye  of  curiosity.  Some  vague  insinua- 
tions may  probably  escape;  something  which  might 
justify  a  suspicion  of  their  determination.  Suppose,  then, 
that  Aaron  Burr  were  to  be  actuated  by  these  considera- 
tions ;  suppose  that  his  fears,  (if  fears  he  can  feel)  should 
prompt  him  to  escape,  what,  sir,  would  become  of  our 
indictment?  Mr.  Burr  may  quit  the  United  States  ;  he 
may  flee  forever  beyond  the  jurisdiction  of  this  coun- 
try ;  and  in  that  case,  the  whole  world  would  ridicule  us 
for  the  course  we  had  pursued.  Or  let  us  even  suppose 
that  we  were  to  withdraw  this  motion,  where  would  be 


ARGUMENT.  37 

our  security?  Must  we  trust  to  the  indulgence  of  Mr. 
Burr  himself  for  remaining  in  this  city  and  standing  his 
trial  ? 

We  expect  General  Wilkinson  here  in  a  few  days. 
We  have  an  affidavit  which  positively  states,  that  an  ex- 
press to  New  Orleans,  to  command  his  presence  on  this 
trial,  was  met  on  the  frontiers  of  the  Mississippi  Terri- 
tory ;  we  have  also  letters  from  the  attorney-general  of 
the  United  States,  explicitly  stating  that  General  Wil- 
kinson has  been  officially  authorized  to  leave  the  army 
of  the  United  States,  and  select  whatever  mode  of  trans- 
portation he  might  think  proper.  [Here  Mr.  Hay  read 
the  affidavit,  showing  that  the  express  to  General  Wil- 
kinson had  been  seen  in  Athens,  in  the  state  of  Georgia.] 
In  the  meantime,  what  is  Colonel  Burr's  situation  ?  It 
is  completely  optional  with  him,  whether  to  stay  here 
and  face  his  accusers,  or  to  avail  himself  of  his  liberty 
and  leave  the  United  States.  We  call  upon  this  court 
to  exercise  the  authority  with  which  they  are  invested  ; 
and  by  binding  over  Colonel  Burr,  as  well  on  the  charge 
of  high  treason,  as  of  a  misdemeanor,  to  detain  him  here 
for  a  satisfactory  trial. 

We  scarcely  expected  to  have  been  asked,  why  Gen- 
eral Wilkinson  was  not  here?  The  gentleman  himself 
has  said  that  he  is  a  general.  Can  he  then  leave  his  army 
at  any  time,  and  without  the  permission  of  the  govern- 
ment ?  Make,  however,  a  computation  of  time.  The 
attorney-general  left  this  city  on  the  4th  or  5th  of  April. 
He  reached  Washington  on  the  7th  or  8th.  Allow  then 
a  reasonable  time  for  an  express  from  Washington  to 
New  Orleans  ;  and  for  a  man  of  General  Wilkinson's  age 
and  bulk  to  travel  to  this  city,  and  is  it  probable  that 
he  could  have  arrived  here  before  this  period  ?  If  he 
availed  himself  of  the  liberty  and  means  to  come  by 
water,  the  gales  have  been  lately  very  severe.  And 
even  two  of  the  grand  jury  have  assured  me,  that  if  Gen- 
eral Wilkinson  was  exposed  to  the  late  tempestuous 
weather,  he  will  probably  never  see  the  United  States. 
Mr.  Wickham  has  expatiated  upon  the  attempts  made  to 
prejudice  the  public  opinion  through  the  medium  of  the 
press.  Sir,  a  great  deal  has  been  said  in  the  newspapers 
:apon  this  transaction,  and  a  great  deal  will  yet  be  said 


38  TRIAL     OF    AARON    BURR. 

But  are  the  presses  shut  against  Colonel  Burr,  when  even 
in  this  very  city  certain  presses  have  been  found  to  vin- 
dicate his  motive  and  designs?  But  what  of  all  this? 
The  public  mind  is  hostile  to  any  encroachment  upon 
the  liberty  of  the  press  ;  and  it  ought  to  be  so.  Where 
a  crime  of  such  gigantic  enormity  as  that  attributed  to 
Aaron  Burr  arises  in  this  country,  the  printers  will  speak, 
and  they  ought  to  speak;  the  purest  motives  will  com- 
mand them  to  speak.  If  there  have  been  publications 
against  Colonel  Burr,  innumerable  communications  have 
also  appeared  in  his  favor;  and  if  the  publications  against 
him  have  contained  the  severest  strictures,  they  have 
resulted  from  his  own  character  and  conduct ;  and  he  has 
no  right  to  complain. 

He  stands  on  the  fairest  ground  which  his  conduct  and 
character  can  reach.  But  if  in  truth  prejudices  have 
been  improperly  excited  against  him,  why  does  he  wish 
to  close  the  only  door  to  his  own  vindication,  by  exclud- 
ing the  evidence  ?  His  counsel  exclaim  :  "  Send  the 
evidence  to  the  grand  jury."  Surely,  if  Colonel  Burr 
wishes  to  have  the  evidence  before  the  jury,  he  should 
be  much  more  anxious  to  have  it  before  the  court.  The 
jury  will  have  one  side  of  the  evidence  only  before  them  ; 
and  that  will  be  completely  against  himself.  Both,  how- 
ever, will  go  before  the  court.  Why,  then,  does  he 
shrink  from  the  evidence?  If  an  unjust  prejudice  assails 
him,  the  light  of  truth  and  evidence  will  dissipate  it. 
Why  does  he  shrink  ? 

The  gentlemen  on  the  other  side,  continued  Mr.  Hay, 
do  not  do  us  justice.  They  charge  us  with  persecution 
and  oppression.  Sir,  I  never  contemplated  or  wished  to 
hurt  Aaron  Burr.  I  scorn  it.  I  look  not  to  him.  I 
look  only  to  the  duties  which  I  am  solemnly  bound  to 
perform.  One  remark  more,  sir,  and  I  have  done : 
Gentlemen  on  the  other  side,  insist  upon  the  insuffi- 
ciency of  our  evidence ;  because  we  have  withheld  our 
indictments  from  the  grand  jury,  they  have  hastily  in- 
ferred, that  we  feel  our  evidence  to  be  too  feeble  to  sAjsi;B 
the  jury.  They  are  mistaken,  sir.  I  assure  themthaB  }A}  \\ 
are  mistaken.  I  conscientiously  believe,  that  we  have 
evidence  enough,  even  throwing  out  the  depositions 
themselves,  to  satisfy  the  grand  jury  of  the  guilt  of  Aaron 


ARGUMENT.  39 

Burr.  But,  sir,  puerile  indeed  would  it  be  for  us,  under 
the  present  state  of  things,  to  submit  our  case  before  the 
grand  jury,  on  the  evidence  before  us,  when  we  are  every 
moment  expecting  better. 

Mr.  Edmund  Randolph  addressed  the  court  to  the  fol- 
lowing effect : 

Sir,  it  would  have  been  impossible  for  us,  even  had  we 
received  due  notice  of  this  notion,  to  have  availed  our- 
selves of  the  time  that  was  allowed  to  us.  That  would 
have  been  impossible,  because  the  enormity  of  the 
proposition  itself,  would  have  baffled  all  our  consider- 
ation, and  all  our  researches.  Mark  the  course,  sir, 
which  has  been  pursued  towards  my  unfortunate  client. 
First,  he  was  was  brought  here  under  a  military  escort. 
Then  that  little  folio  of  depositions  and  affidavits,  was 
laid  before  your  honor;  then  the  charge  of  treason  ;  and 
then  that  little  cock-boat  which  was  destined  to  attend 
this  great  ship,  on  a  foreign  expedition.  You  heard  it 
all,  sir,  and  what  did  you  say?  You  bound  Colonel 
Burr  to  bail,  simply  on  the  charge  of  a  misdemeanor,  to 
appear  here  at  the  opening  of  court ;  but  not  contented 
with  this  security,  you  superadded,  that  he  was  not  to 
leave  the  court  until  it  had  discharged  him.  You  opened 
the  door,  too,  for  an  ulterior  prosecution  ;  you  declared 
that  if  the  attorney  for  the  United  States  should  obtain 
any  additional  evidence,  the  judgment  which  you  then 
rendered,  would  not  prevent  his  indicting  Colonel  Burr 
on  the  charge  of  treason. 

Sir,  thus  stands  the  case,  as  it  was  understood  by 
the  whole  universe.  On  Friday,  we  came  here  to  meet 
the  whole  world ;  Friday,  however,  passes  away,  and 
nothing  is  done.  On  Saturday,  we  came  here  again  ; 
Saturday,  also,  passes  away,  and  nothing  is  done.  But 
on  Sunday,  sir  (for  it  seems  that  day,  which,  to  the  gener- 
ality of  mankind,  is  a  day  of  rest,  is  a  day  of  activity  to 
some),  is  broached  this  new-fangled  doctrine,  which  now 
excites  our  astonishment.  They  demand  precedents, 
sir,  for  our  conduct  ;  and  who  are  they  that  require  it? 
Why,  sir,  they  that  take  things  out  of  the  ordinary  course 
of  the  law.  For  thirty  years,  I  have  never  seen  such  a 
proceeding  ;  I  have  never  read  of  such  an  one  in  the 
English  books  ;  and  yet,  these  gentlemen  call  upon  us 


\ 


40  TRIAL     OF    AARON    BURR. 

for  precedents.  If  we  were  asked  for  our  reasons,  sir,  we 
should  have  enough  to  offer ;  and  first,  a  judge  in  the 
federal  court,  sitting  in  the  capacity  which  your  honor 
now  fulfills,  is  in  the  same  relation  to  the  accused,  as  an 
examining  judge  is  in  the  state  courts.  But,  sir,  who 
ever  invited  a  single  magistrate,  or  a  state  court  to  aug- 
ment the  bail  of  any  individual  in  the  situation  of 
Colonel  Burr?  If  a  man  was  bound,  in  a  distant  county, 
to  answer  to  misdemeanor,  and  another  crime  was  to  be 
brought  against  him,  to  be  predicated  on  the  very  same 
evidence,  have  you,  sir,  ever  known  the  trying  court  to 
increase  his  bail  ?  There  never  was  such  an  example, 
sir. 

Mr.  Botts'  remark,  sir,  is  not  to  be  answered.  You 
are  changing  the  constitutional  organ  of  justice.  You 
are  completely  blotting  out  the  functions  of  a  grand 
jury.  The  witnesses  will  be  all  produced  before  you  ; 
but  no,  improper  as  this  proceeding  will  be,  it  is  still  less 
so,  than  that  which  they  will  actually  pursue.  None  of 
the  United  States'  witnesses  will  be  brought  before  you, 
but  those  whom  they  may  think  it  politic  to  introduce  ; 
and  depend  upon  it,  that  such  testimony  will  be  garbled 
for  the  ears  of  this  court,  as  may  be  expected  to  bias 
their  judgment.  Well,  sir,  and  what  will  be  the  conse- 
quence ?  When  the  grand  jury  are  about  to  retire  to 
their  own  chamber,  they  will  be  told  that  you  have  de- 
manded additional  bail.  Are  you  then,  sir,  to  be  a 
pioneer  of  blood  for  the  grand  jury?  Is  not  this 
precedent  outrageous,  sir?  The  boasted  principle,  that 
no  man  is  to  be  condemned  but  upon  the  verdict  of 
twenty-four  of  his  peers,  is  gone.  Throughout  this  town, 
it  will  be  universally  reported,  that  you  have  solemnly 
declared  Aaron  Burr  to  be  guilty  of  high  treason  against 
the  United  States;  and  some  of  those  to  whom  the 
rumor  may  extend,  may  hereafter  be  impaneled  on  the 
petit  jury.  And  will  they  feel  themselves  altogether 
unbiassed  by  your  judgment?  Why,  sir,  let  it  be  de- 
clared at  once,  that  the  grand  jury  is  to  be  struck  out 
as  an  intermediate  organ  of  justice. 

Do  not,  I  pray  you,  sir,  let  us  suffer  for  the  delays  and 
negligence  of  other  people.  I  can  not  blame  the  United 
States'  attorney.  It  is  his  business  to  obey  the  instruc- 


ARGUMENT.  41 

tions  of  the  government ;  and  if  the  witnesses  are  not 
here,  it  is  certainly  no  fault  of  his ;  but  surely  there  is 
time  enough  to  travel  from  New  Orleans  to  this  city  in 
seventeen  days  ;  even  with  the  gigantic  "  bulk "  of 
General  Wilkinson  himself. 

Mr.  Hay  says  our  tone  is  changed.  And  how,  sir? 
We  demand  a  trial  now.  We  demand  a  fair  trial.  But 
must  we  not,  therefore,  protest  against  a  measure,  which 
is  calculated  to  defeat  this  object?  Certainly,  sir.  You 
are  called  upon  to  prejudice  the  minds  of  the  grand 
jury.  But,  sir,  in  this  interesting  case,  where  liberty  and 
life  themselves  are  endangered,  i  trust  that  some  hard- 
mouthed  precedents,  from  old  black-letter  books,  will  be 
found  in  opposition  to  this  procedure.  We  have  come 
here  to  answer  to  every  charge  which  may  be  urged 
against  us  ;  we  come  here  to  answer  in  a  precedented 
and  constitutional  manner ;  but  little  did  we  expect  that 
the  court  would  decide  in  the  first  instance,  instead  of 
the  grand  jury  ;  that  the  sentiments  of  the  grand  jury 
were  to  be  prejudicated  by  an  unconstitutional  decision; 
and  that  the  court  itself  was  to  commit  its  opinion  on 
certain  points,  which  would  be  regularly  brought  before 
them  for  argument  and  for  decision  at  some  of  the 
ulterior  stages  of  the  prosecution.  "  Why,"  said  Mr. 
Wirt,  "do  you  shrink?"  Sir,  trace  the  course  of  the 
prosecution,  and  see  who  it  is  that  retires  from  the  con- 
test. On  Friday  the  United  States'  attorney  was  not 
ready;  on  Saturday,  he  was  not  ready;  and  now,  indeed, 
he  we  will  not  probably  be  ready  before  Monday  next. 
Sir,  who  is  it  that  shrinks?  and  yet  does  the  attorney 
positively  aver,  that  he  has  evidence  enough  ! 

We  are  charged,  sir,  with  addressing  the  multitude. 
Mr.  Wirt  says  that  he  could,  but  would  not  imitate  the 
example  ;  but  neither  he  nor  Mr.  Hay  hath  spared  the 
theme.  -Sir,  I  will  not  deny  the  justness  of  his  eulogiums 
upon  the  administration  ;  but  permit  me  only  to  remark, 
that  there  has  been  a  certain  conduct  observed  towards 
Colonel  Burr  which  excites  my  deepest  astonishment. 
When  I  look  at  the  first  man  in  the  government,  I  be- 
hold an  individual  whom  I  have  long  known,  and  whose 
public  services  have  commanded  my  admiration.  When 
I  look  at  the  second,  sir,  he  has  my  whole  heart.  But, 


42  TRIAL     OF    AARON     BURR. 

sir,  the  inquiry  which  is  now  before  us  relates  not  so 
much  to  the  intention  as  to  the  effect.  An  order  has 
been  given  to  treat  Colonel  Burr  as  an  outlaw,  and  to 
I  burn  and  destroy  him  and  his  property.  And,  sir,  again: 
when  the  house  of  representatives  demanded  certain  in- 
formation, as  it  was  their  right  and  their  duty  to  do,  the 
president  granted  it,  and  would  to  God,  sir,  that  he  had 
stopped  here,  as  an  executive  officer  ought  to  have  done. 
He  proceeded,  however,  to  say  that  Colonel  Burr  was 
guilty  of  a  crime,  and  consequently  to  express  an  opinion, 
which  was  calculated  to  operate  judically  upon  the 
judges  and  the  juries.  Such  was  the  substratum  of  all 
the  censures  which  have  been  heaped  upon  Colonel 
Burr. 

Mr.  Randolph  proceeded  to  touch  upon  a  subject  to 
which  Mr.  Hay  had  referred.  Colonel  Burr  was  arrested 
in  the  Mississippi  Territory.  Was  there  no  court  there? 
was  there  no  judge  of  integrity  to  try  him  ?  arrested  too 
after  he  had  been  acquitted  by  a  grand  jury !  Well ! 
he  was  transported  thence  (with  humanity  it  has  been 
said),  dragged  on  by  eight  musketeers,  who  were  ready 
to  shoot  him  at  a  moment's  warning;  refused  any  appeal 
to  the  judicial  authority;  denied  even  the  melancholy 
satisfaction  of  writing  to  his  only  child.  Was  all  this 
humanity?  Dragged  before  this  court,  which  derives  its 
only  jurisdiction  from  a  little  speck  of  land  on  the  Ohio. 
Yes,  sir;  but  for  that  little  spot  of  an  island,  Virginia 
never  would  have  enjoyed  this  honor  !  What  is  all  this, 
sir,  but  oppressive  and  bitter  inhumanity?  I  trust,  sir, 
from  what  I  have  said,  that  no  one  will  think  with  Mr. 
Wirt,  that  I  am  shifting  the  question  from  Colonel  Burr 
to  Mr.  Jefferson.  I  should  not  have  made  the  obser- 
vations which  have  escaped  me,  but  to  show  that  my 
client  is  justified 'by  his  situation  in  stating  every  objec- 
tion that  he  can  to  the  present  measure.  . 

Mr.  Randolph  observed  that  at  least  one  disadvantage 
would  result  from  this  inquiry;  that  it  was  not  clear,  as 
Mr.  Hay  had  asserted,  that  the  affidavits  would  be  laid 
before  the  court  only,  and  not  before  the  grand  and  petit 
juries,  for  the  grand  jury  would  soon  be  possessed  of  the 
substance  of  them,  and  that  it  was  next  to  imposible  for 
them  to  separate  the  impressions  thus  illegally  to  be  pro- 


ARG  UMENT.  43 

duced  on  their  minds,  from  the  weight  of  the  legal  viva 
voce  testimony. 

Mr.  Randolph  said  that  he  did  not  understand  Mr. 
Hay's  expressions  about  certain  persons  in  holes  and 
corners ;  that  if,  however,  he  meant  spies,  there  were  none 
such  employed  by  Colonel  Burr ;  but,  although  the  govern- 
ment certainly  had  employed  no  spies,  yet  it  has  excited 
so  much  prejudice  against  Colonel  Burr,  that  it  was  suf- 
ficient to  make  every  man  in  the  country  desirous  of 
contributing  his  full  quota  of  information  against  him. 
Mr.  Randolph  concluded  with  remarking,  that  the 
present  argument  had  perhaps  been  permitted  to  em- 
brace too  wide  a  field  of  discussion,  and  that  there  were 
two  great  questions  which  he  should  submit  to  the  con- 
sideration of  the  court:  1st,  Whether  there  were  any 
precedents  in  favor  of  the  present  motion  ?  and  2d,  If  a 
proposition  like  this,  and  of  such  great  importance,  was 
adopted  without  any  precedent  to  support  it,  whether  it 
would  not  expose  every  man  in  the  country  to  the  danger 
of  oppression  ? 

Mr.  Randolph  contended  that  this  was  a  charge  which 
the  judge  had  already  decided,  on  a  former  examination  ; 
that  it  was  not  a  supplemental  crime,  but  the  old  one  ; 
that,  perhaps,  there  might  be  some  little  affidavit  to 
splice  out  some  defect  in  the  former  evidence  ;  but  what 
would  be  the  consequence  of  this  proceeding?  Day 
after  day,  another  and  another  affidavit  would  be 
brought  forth.  Facts,  like  polypi,  are  easily  cut  into 
two  or  three  pieces,  each  of  which  may  be  made  to  form 
a  new  and  entire  body,  and  each  of  those  atoms  is  to 
require  a  new  recognizance.  For  one  affidavit  there 
must  be  a  bail  of  1,000  dollars:  another  affidavit,  another 
1,000  dollars :  until  the  burden  of  bail  is  so  oppressive  as 
to  leave  no  other  resource  but  in  the  four  walls  of  a  prison. 

Mr.  Hay  observed  that  he  should  simply  notice  one 
remark  of  Mr.  Randolph's.  That  gentleman  had  used 
the  expression  of  "  pioneer  of  blood ; "  but  surely  it 
would  not  have  escaped  him,  had  he  but  for  one  moment 
seriously  reflected  upon  the  court  whom  he  addressed, 
upon  the  counsel  he  opposed,  or  the  government.  Satis- 
fied of  this,  Mr.  Hay  said  he  should  pass  the  observation 
by  without  further  notice. 


44  TRIAL     OF    AARON    BURR. 

Mr.  Randolph  had  stated  that  no  similar  case  had  oc- 
curred in  his  thirty  years'  practice.  It  was  not  won- 
derful that  such  a  case  had  not  occurred  in  the  time 
when  that  gentleman  was  attorney  for  the  common- 
wealth. A  great  change  has  taken  place  in  the  system 
of  our  government.  At  that  time  no  federal  court  ex- 
isted. The  mode  of  proceeding  in  the  state  courts  is 
different  from  that  here.  In  the  system  of  penal  law 
established  in  the  commonwealth  of  Virginia,  there  is  an 
examining  court,  intervening  between  the  arrest  and 
commitment  of  a  prisoner,  and  his  being  charged  before 
the  grand  jury ;  but  this  court  has  the  power  to  examine 
as  well  as  to  commit.  Moreover,  the  United  States  are 
a  most  extensive  country,  compared  to  that  of  Virginia; 
a  most  material  .witness  may  now  be  1,500  miles  from 
the  court  before  which  he  is  to  appear  ;  and  may  be  at 
the  same  time  at  the  head  of  an  army  ;  in  all  which  cir- 
cumstances, the  federal  and  the  state  sovereignties  are 
different.  So  that  this  difference  altogether  defeats  the 
application  of  Mr.  Randolph's  experience  to  this  subject^ 
even  if  that  experience  had  been  admitted  as  a  good 
authority  in  the  state  courts.  But  even  that  gentleman 
would  admit,  that  had  a  similar  case  occurred  before  the 
state  courts,  the  accused  would  have  been  committed. 
Mr.  Randolph  asserts  that  this  motion  is  made  to  draw 
forth  the  opinion  of  the  court,  and  thus  to  prejudicate 
the  minds  of  the  grand  jury.  But  Mr.  Randolph  has 
certainly  forgotten  that  this  intelligent  and  impartial 
jury  are  on  their  oaths  and  their  consciences ;  and  surely 
this  court  will  not  pay  so  little  compliment  to  their 
independence,  as  to  admit  that  its  own  opinion  will  be 
sufficient  to  bias  their  judgment;  more  particularly,  too, 
when  the  point  before  the  court  is  so  different  from  that 
before  the  jury.  It  is  the  business  of  the  court  to  com- 
mit, and  of  the  jury  to  indict;  and  it  is  certainly  the 
privilege  of  the  court  to  decide  upon  written  testimony, 
although  that  point  may  not  be  perfectly  established 
and  settled  as  it  relates  to  the  grand  jury.  How  the 
court  would  decide  upon  this  point,  Mr.  Hay  said,  he 
could  not  pretend  to  know.  There  is  another  consider- 
ation, which  should  be  weighed  by  the  opposite  counsel. 
The  grand  jury  is  now  already  embodied.  They  are 


ARGUMENT.  45 

ready  to  proceed  with  any  business  which  may  be 
brought  before  them  ;  but  my  great  object,  said  Mr.  Hay, 
is  to  prosecute  Colonel  Burr  on  the  charge  of  treason. 
I  make  this  declaration,  because  I  believe  him  to  have 
been  guilty  of  it.  Let  us  suppose,  however,  that  the 
grand  jury  were  to  discharge  Colonel  Burr  from  the  mis- 
demeanor; and  then  that  I  were  to  bring  the  present 
motion  before  the  court,  what  resource  then  would  Mr. 
Randolph  have  ?  From  the  present  proceeding,  how- 
ever, Mr.  Burr  would  derive  the  advantage  of  an  imme- 
diate trial ;  whereas,  according  to  the  other  mode  of 
proceeding,  weeks  and  months  might  escape  before  he 
would  be  brought  to  trial ;  and  certainly  it  is,  in  every 
point  of  view,  more  desirable,  both  for  the  government 
and  himself,  to  terminate  this  business  at  once,  than  to 
impose  upon  us  the  necessity  of  moving  for  an  adjourned 
trial. 

Mr.  Randolph  says,  "  We  are  ready;  we  were  ready 
on  Friday  ;  we  were  ready  on  Saturday,  &c."  Sir,  there 
are  two  sorts  of  readiness :  one  in  point  of  fact,  and 
one  under  certain  circumstances.  Now,  these  gentle- 
men will  scarcely  persuade  me  that  they  could  be  ready 
to  resist  the  weight  of  evidence,  if  it  were  ready  to  be 
laid  before  them  ;  but  there  is  certainly  no  difficulty  in 
believing  that  they  are  now  ready  to  proceed  to  trial, 
when  the  whole  evidence,  and  particularly  General  Wil- 
kinson's, is  not  present.  One  more,  remark :  Mr.  Ran- 
dolph has  expressed  a  reverence  for  Mr.  Jefferson,  which 
is  not  certainly  derived  from  trifling  considerations.  I 
will  make  but  one  remark,  and  that  gentleman  will  agree 
with  me  in  the  opinion  :  Survey  the  many-peopled 
globe,  through  all  ages  and  nations,  and  you  will  not 
find  a  man  more  anxiously  bent  upon  promoting  the 
liberty  of  the  people.  This  was  certainly  the  idea  which 
Mr.  Randolph  intended  to  convey.  Mr.  Randolph  next 
proceeded  to  Mr.  Madison,  upon  whom  he  has  not  hesi- 
tated to  lavish  the  most  unreserved  encomiums.  Surely, 
then,  after  this  solemn  declaration  of  the  oldest  counsel 
for  the  prisoner,  we  shall  hear  no  more  about  persecu- 
tion. Sir,. it  is  a  state  of  things,  which  it  is  impossible 
to  reconcile  with  the  amiable  character  ascribed  to  the 
first  two  officers  in  the  government. 


46  TRIAL    OF  AARON  BURR. 

Mr.  Peckhain  observed  that  he  should  offer  a  few 
remarks  on  the  supplementary  arguments  of  Mr.  Hay. 
That  in  this  case  Colonel  Burr's  counsel  had  called,  they 
had  a  right  to  call,  for  precedents;  that  Mr.  Randolph, 
who  had  so  ably  represented  this  commonwealth,  as  a 
criminal  prosecutor  for  many  years,  had  never  known  a 
single  one  to  justify  this  motion  ;  that  however  true  it 
might  be,  that  the  state  of  Virginia  was  now  of  smaller 
extent  than  the  whole  of  the  United  States,  yet  it  wa? 
then  cut  up  into  as  small  judicial  districts  as  the  United 
States  at  present  are,  and  that  the  witnesses  in  a  crimi- 
nal prosecution  might  have  been  scattered  over  those 
districts,  as  they  are  said  to  be  in  the  present  circum- 
stances ;  that  Mr.  Randolph  had  represented  not  one  of 
those  districts,  but  the  whole  ;  not  only  on  this  side 
of  the  mountains,  but  beyond  them  ;  and  even  the  un- 
cultivated region  of  Kentucky,  where  traveling  was  at 
that  time  liable  to  so  many  difficulties,  and  from  which 
it  was  so  extremely  laborious  to  transport  the  witnesses 
to  this  side  of  the  mountains;  that  it  was  not  until  Ken- 
tucky had  been  more  thickly  populated,  that  a  particular 
court  had  been  established  there.  And  what  is  the  case 
in  England  and  her  dependencies  ?  Certainly  that  island 
is  not  equally  extensive  with  the  United  States  ;  but  her 
subjects  may,  at  all  events,  be  scattered  over  the  world. 
Why,  then,  is  there  no  precedent  in  that  country  ?  Is  it 
not  probable  that  a  man  might  happen  to  be  as  far  from 
the  court  of  king's  bench,  as  General  Wilkinson  is  from 
this  court  ?  and  yet  there  is  no  precedent  to  justify  this 
motion.  What  is  the  crime  ?  Is  it  of  so  little  impor- 
tance that  this  court,  upon  the  production  of  every  little 
affidavit,  should  consent  to  hear  new  motions  for  a  com- 
mitment ?  This  crime  is  treason  !  it  is  "  a  levying  ot 
war"  against  the  United  States  !  and  where  is  the  proot 
of  it  ?  where  were  Colonel  Burr's  forces  ?  was  his  army 
like  that  of  Bayes,  kept  in  disguise?  Wilkinson's  testi- 
mony can  not  establish  this  fact ;  for  it  is  the  opinion  of  the 
chief  justice,  that  his  affidavit  does  not  at  all  bear  upon 
this  subject ;  and  yet  two  months  have  since  elapsed, 
and  no  testimony  has  been  collected.  Wilkinson's  depo- 
sition contains  an  improbable,  mysterious  tale,  about  a 
key  and  cypher.  Mr.  Wickham  said  that  he  would  not 


AR  G  UMENT.  47 

at  present  expose  this  transaction  ;  but  does  this  myster- 
ious tale  constitute  treason?  "  You,  sir,  have  already 
decided  that  there  is  no  treason  in  Wilkinson's  deposi- 
tion ;  but  were  the  man  himself  in  court,  what  could  he 
establish  further  than  his  deposition  can  do?"  Mr.  Hay 
is  satisfied  that  he  has  sufficient  evidence  to  convict 
Colonel  Burr.  No  man  doubts  his  ability,  or  his  inclina- 
tion to  discharge  his  duty.  Why,  then,  does  he  not  lay 
his  indictments  before  the  jury?  Because  there  happens 
to  be  a  man  in  New  Orleans,  and  one,  perhaps,  in  the 
Eas-t  Indies;  and  therefore,  "to  make  assurance  double 
sure,"  he  must  wait  for  their  appearance  ;  and  all  this, 
too,  whilst  the  gentleman  most  seriously  protests  against 
oppression  and  delay.  Though  the  gentleman  may  not 
be  conscious  of  such  a  sentiment,  as  that  of  wishing  to 
oppress  Colonel  Burr,  there  must  still  be  something  like  it 
in  his  heart:  but  whatever  the  motive  may  be,  the  result 
to  ourselves  is  the  same.  It  produces  delay,  and  all  its 
consequent  oppressions.  No  court  should  sanction  this 
proceeding.  This  case  is  like  that  of  a  man  whose  cause 
stands  for  trial.  When  subpoenas  after  subpoenas  have 
been  issued  ;  when  sums  after  sums  have  been  expended  ; 
he  moves  for  a  continuance  of  his  suit,  and  at  the  very 
same  time,  he  insists  upon  the  sufficiency  of  his  evi- 
dence. Surely  the  court  would  rule  him  to  trial.  Why 
is  not  the  attorney  for  the  United  States  ready  for  trial  ? 
He  has,  indeed,  made  a  computation  of  time  to  show  that 
Wilkinson  could  not  have  been  here  before  this  period  ; 
and  he  has  besides  introduced  an  affidavit  to  show  that 
an  express  was  on  his  way  to  New  Orleans,  to  give  him  an 
early  summons.  There  is,  however,  nothing  in  proof 
that  the  drawer  of  this  affidavit  was  not  imposed  on  by 
this  express ;  or  that  the  express  himself  was  not  mis- 
taken, as  to  the  contents  of  his  dispatches.  And  how 
stands  the  computation  of  time  ?  The  post  goes  from 
Washington  to  New  Orleans  in  seventeen  days.  Mr. 
Rodney  left  this  city  in  the  last  of  March.  The  express 
must,  therefore,  have  reached  New  Orleans  about  the 
2Oth  of  April;  and  yet,  where  is  Wilkinson?  Though 
the  Mississippi  runs  down  to  New  Orleans,  and  opposes 
a  strong  current  to  those  who  ascend  it,  yet  it  is  surely  a 
reasonable  proposition,  that  on  land  it  requires  no  longer 


48  TRIAL     OF    AARON    BURR. 

time  to  come  than  to  go,  and  yet  General  Wilkinson  is 
not  here! 

Mr.  Hay  says  it  is  of  no  consequence  whether  the 
grand  jury  is  present  or  not.  But  is  this  consonant  with 
the  sound  principles  of  law?  Is  it  constitutional,  sir, 
where  there  is  a  particular  body  set  apart  for  the  investi- 
gation of  facts,  for  the  court  to  step  in  and  rudely  take 
this  power  from  them  ?  He  says  that  perhaps  he  shall 
not  send  up  his  biljs  before  the  present  grand  jury.  But 
I  trust  in  God,  sir,  that  this  determination  will  be  over- 
ruled by  the  court;  and  that  if  this  prosecution  is  ever 
to  be  closed,  we  may  see  the  curtain  dropped  upon  it 
now  and  forever!  If,  sir,  the  counsel  for  the  prosecu- 
tion obtain  a  postponement  of  this  trial,  and  for  want  of 
evidence  on  their  part,  we  might  probably  contend,  that 
Colonel  Burr,  if  bound  to  bail  at  all,  should  be  held  in  a 
smaller  recognizance  than  at  present.  But  we  shall 
waive  this  right.  It  is  not  our  wish  to  discharge  the 
grand  jury,  but  to  set  this  question  at  rest  forever. 

We  have  said  that  we  were  ready  for  trial.  We  are  so, 
sir,  in  fact,  as  well  as  in  the  abstract.  The  prosecutors 
say  that  we  do  not  believe  them  to  be  ready  :  but  how 
can  the  gentleman  suppose  that  we  mean  to  pay  so  poor 
a  compliment  to  his  veracity,  as  to  believe  that  he  acts 
upon  his  own  facts,  as  if  he  himself  did  not  believe 
them  to  be  true? 

The  gentleman,  sir,  has  warmly  eulogized  the  present 
administration.  As  a  private  citizen,  sir,  no  man  has 
less  to  say  with  the  politics  of  this  country  than  myself. 
That  gentleman  has  drawn  a  picture  of  our  national  pros- 
perity ;  and  I  am  happy  to  hope  that  it  is  true  to  life  in 
everything,  one  feature  only  excepted.  What,  how- 
ever, will  he  say  of  the  persecution  of  my  client  ?  Sir, 
let  that  gentleman  draw  the  most  animated  picture  of 
our  happiness,  which  his  imagination  can  supply;  let.it 
be  howsoever  cheering,  or  howsoever  just,  it  will  be 
but  little  alleviation  to  the  wounds  of  my  persecuted 
client,  that  he  is  the  only  man  in  the  nation  whose  rights 
are  not  secure  from  violation. 

Mr.  Burr  then  rose  and  addressed  the  court. 

I  am  not,  I  hope,  sir,  wasting  the  time  of  the  court 
upon  the  present  occasion.  The  motion  proposed,  is 


ARGUMENT.  49 

admitted  on  all  hands  to  be  important ;  and  it  is  cer- 
tainly a  new  one.  Perhaps  it  was  to  have  been  ex- 
pected, that  on  a  point  so  novel,  some  precedents  would 
have  been  produced ;  but,  in  this  expectation  we  have 
been  disappointed.  Its  novelty  will,  however,  be  produc-  ' 
tive  of  another  effect.  It  will  still  better  qualify  it  for 
making  another  small  feature  in  a  picture  of  oppressions 
and  grievances,  which  have  never  been  paralleled  in 
the  records  of  criminal  law. 

The  case  is  this  :  no  man  denies  the  authority  of  the 
court  to  commit  for  a  crime  ;  but  no  commitment  ought 
to  be  made,  except  on  probable  cause.  This  authority 
is  necessary  ;  because  policy  requires  that  there  should 
be  some  power  to  bind  an  accused  individual  for  his  per- 
sonal appearance,  until  there  shall  have  been  sufficient 
time  to  obtain  witnesses  for  his  trial ;  but  this  power 
ought  to  be  controlled  as  much  as  possible. 

The  question  in  the  present  case  is,  whether  there  is 
probable  cause  of  guilt :  and  whether  time  ought  to  be 
allowed  to  collect  testimony  against  me  ?  This  time 
ought  generally  to  be  limited  ;  but  there  is  no  precise 
standard  on  the  subject  ;  and  much  is  of  course  left  to 
the  sound  discretion  of  the  court.  Two  months  ago, 
however,  you  declared  that  there  had  been  time  enough 
to  collect  the  evidence  necessary  to  commit  on  probable 
cause  ;  and  surely,  if  this  argument  was  good  then,  it  is 
still  better  now. 

As  soon  as  a  prosecutor  has  notice  of  a  crime,  he  gen- 
erally looks  out  for  witnesses.  It  is  his  object  to  obtain 
probable  cause  for  committing  the  accused.  Five 
months  ago,  a  high  authority  declared  that  there  was  a 
crime  ;  that  I  was  at  the  head  of  it ;  and  it  mentioned 
the  very  place,  too,  where  the  crime  was  in  a  state  of 
preparation.  The  principal  witness  against  me,  is  said  to 
be  Mr.  Wilkinson.  Now,  from  what  period  is  the  time 
to  be  computed  ?  If  from  the  time  I  was  suspected, 
five  months  ;  if  from  the  time  when  I  was  siezed,  three 
months ;  or  is  it  to  be  only  computed  from  the  time 
when  I  was  committed  ?  So  that  it  is  near  forty  days 
since  the  notice  must  have  arrived  at  New  Orleans. 
But  a  vessel  navigates  the  coast,  from  New  Orleans  to 
Norfolk,  in  three  weeks.  I  contend,  however  that  wit- 

I.— 4 


50  TRIAL     OF    AARON    BURR. 

nesses  ought  to  be  procured,  from  the  very  time  when 
the  crimes  are  said  to  be  committed.  There  is,  then, 
no  apology  for  the  delay  of  the  prosecution,  as  far  as 
it  respects  the  only  person  for  whom  an  apology  is 
attempted  to  be  made. 

There  are  other  serious  objections  to  my  situation. 
Must  I  be  ready  to  proceed  to  trial?  True,  sir,  but  then 
it  must  be  in  their  own  way.  Are  we  then  on  equal 
terms  here  ?  Certainly  not.  And  again,  as  to  affidavits. 
The  United  States  can  have  compulsory  process  to  ob- 
tain them ;  but  I  have  no  such  advantage.  An  ex  parte 
evidence,  then,  is  brought  before  this  court,  on  a  motion 
for  commitment.  The  evidence  on  one  side  only  is  ex- 
hibited ;-  but  if  I  had  mine  also  to  adduce,  it  would 
probably  contradict  and  counteract  the  evidence  of  the 
United  States.  Well,  sir,  and  these  affidavits  are  put 
into  the  newspapers,  and  they  fall  into  the  hands  of  the 
grand  jury.  I  have  no  such  means  as  these,  sir;  and 
where,  then,  is  the  equality  between  the  government 
and  myself. 

The  opinion  of  the  court,  too,  is  to  be  committed 
against  me.  Is  this  no  evil? 

A  sufficient  answer,  sir,  has  been  given  to  the  argument 
about  my  delay ;  and  its  disadvantages  to  myself  have 
been  ably  developed.  But  my  counsel  have  been  charged 
with  declamation  against  the  government  of  the  United 
States.  I  certainly,  sir,  shall  not  be  charged  with 
declamation  ;  but  surely  it  is  an  established  principle, 
sir,  that  no  government  is  so  high  as  to  be  beyond  the 
reach  of  criticism  ;  and  it  is  more  particularly  laid  down, 
that  this  vigilance  is  more  peculiarly  necessary,  when 
any  government  institutes  a  prosecution  ;  and  one  reason 
is,  on  account  of  the  vast  disproportion  of  means  which 
exist  between  it  and  the  accused.  But,  if  ever  there  was 
a  case  which  justified  this  vigilance,  it  is  certainly  the 
present  one,  when  the  government  has  displayed  such 
uncommon  activity.  If,  then,  this  government  has  been 
so  peculiarly  active  against  me,  it  is  not  improper  to 
make  the  assertion  here  for  the  purpose  of  increasing 
the  circumspection  of  the  court. 

Mr.  Burr  observed  that  he  meant  by  persecution,  the 
harassing  of  any  individual,  contrary  to  the  forms  of 


ARGUMENT.  51 

law ;  and  that  his  case,  unfortunately,  presented  too 
many  instances  of  this  description.  He  would  merely 
state  a  few  of  them.  He  said  that  his  friends  had  been 
every  where  seized  by  the  military  authority ;  a  practice 
truly  consonant  with  European  despotisms.  He  said 
that  persons  had  been  dragged  by  compulsory  process 
before  particular  tribunals,  and  compelled  to  give  testi- 
mony against  him.  His  papers,  too,  had  been  seized. 
And  yet,  in  England,  where  we  say  they  know  nothing 
of  liberty,  a  gentleman,  who  had  been  seized  and  de- 
tained two  hours,  in  a  back  parlor,  had  obtained  dama- 
ges to  the  amount  of  one  thousand  guineas.  He  said 
that  an  order  had  been  issued  to  kill  him,  as  he  was  de- 
scending the  Mississippi,  and  seize  his  property.  And 
yet,  they  could  only  have  killed  his  person,  if  he  had 
been  formally  condemned  for  treason.  He  said  that 
even  post-offices  had  been  broken  open,  and  robbed  of 
•his  papers  ;  that,  in  the  Mississippi  Territory,  even  an 
indictment  was  about  to  be  laid  against  the  postmaster  ; 
that  he  had  always  taken  this  for  a  felony ;  but  that 
nothing  seemed  too  extravagant  to  be  forgiven  by  the 
amiable  morality  of  this  government.  All  this,  said  Mr. 
Burr,  may  only  prove  that  my  case  is  a  solitary  excep- 
tion from  the  general  rule.  The  government  may  be 
tender,  mild,  and  humane  to  everyone  but  me.  If  so,  to 
be  sure,  it  is  of  little  consequence  to  any  body  but  myself. 
But  surely  I  may  be  excused  if  I  complain  a  little  of 
such  proceedings.  Mr.  Burr  said  there  seemed  to  be 
something  mingled  in  those  proceedings,  which  mani- 
fested a  more  than  usual  inclination  to  attain  the  ends  of 
justice ;  as  far  as  it  related  to  himself,  perhaps,  these 
things  were  of  no  account ;  but  what  was  then  to  be  said 
of  those  and  other  measures,  such  as  the  suspension  ot 
the  habeas  corpus  act,  which  concerned  the  whole  nation  ? 
If  in  the  island  of  Great  Britain  such  a  measure  was  cal- 
culated to  produce  so  much  disturbance,  what  kind  of 
sensation  ought  it  to  produce  in  this  country. 

Our  president,  said  Mr.  Burr,  is  a  lawyer,  and  a  great 
one  too.  He  certainly  ought  to  know  what  it  is  that 
constitutes  a  war.  Six  months  ago,  he  proclaimed  that 
there  was  a  civil  war.  And  yet,  for  six  months  have 
they  been  hunting  for  it,  and  still  can  not  find  one  spot 


52  TRIAL    OF    AARON    BURR. 

where  it  existed.  There  was,  to  be  sure,  a  most  terrible 
war  in  the  newspapers ;  but  nowhere  else.  When  I 
appeared  before  the  grand  jury  in  Kentucky,  they  had 
no  charge  to  bring  against  me,  and  I  was  consequently 
dismissed.  When  I  appeared  for  a  second  time,  before 
a  grand  jury,  in  the  Mississippi  Territory,  there  was 
nothing  to  appear  against  me  ;  and  the  judge  even  told 
the  United  States  attorney  that  if  he  did  not  send  up 
his  bill  before  the  grand  jury,  he  himself  would  proceed 
to  name  as  many  witnesses  as  he  could,  and  bring  it 
before  the  court.  Still  there  was  no  proof  of  war.  At 
length,  however,  the  Spaniards  invaded  our  territory, 
and  yet  there  was  no  war.  But,  sir,  if  there  was  a  war, 
certainly  no  man  can  pretend  to  say  that  the  government 
is  able  to  find  it  out.  The  scene  to  which  they  have 
now  hunted  it,  is  only  three  hundred  miles  distant,  and 
still  there  is  no  evidence  to  prove  this  war. 

Mr.  Burr  requested  the  court  to  consider  the  conse- 
quence which  would  now  result  from  a  commitment  for 
treason  ;  that  if  he  were  bound  now,  the  law  of  Virginia 
declared  that  he  should  so  remain  until  the  next  term  ; 
that  this  delay  was  the  very  inconvenience  he  would 
wish  to  avoid ;  and  that  he  presumed  he  was  to  remain 
in  prison  six  months,  until  they  could  find  out  this  war. 

TUESDAY,  MAY  26,  1807. 

TJie  following  Opinion  was  delivered  by  the  Chief  Justice 

of  the  United  States,  on  Mr.  Hays  motion  to  commit 

Colonel  Burr. 

In  considering  the  question  which  was  argued  yester- 
day, it  appears  to  be  necessary  to  decide : 

1st.  Whether  the  court,  sitting  as  a  court,  possesses 
the  power  to  commit  any  person  charged  with  an  offense 
against  the  United  States. 

2d.  If  this  power  be  possessed,  whether  circumstances 
exist  in  this  case  which  ought  to  restrain  its  exercise. 

The  first  point  was  not  made  in  the  argument,  and 
would,  if  decided  against  the  attorney  for  the  United 
States,  only  change  the  mode  of  proceeding.  If  a  doubt 
can  exist  respecting  it,  that  doubt  arises  from  the  omis- 


OPINION    ON    MOTION     TO     COMMIT.      53 

sion  in  the  laws  of  the  United  States  to  invest  their 
courts,  sitting  as  courts,  with  the  power  in  question. 
It  is  expressly  given  to  every  justice  and  judge,  but  not 
to  a  court. 

This  objection  was  not  made  on  the  part  of  Colonel 
Burr,  and  is  now  mentioned,  not  because  it  is  believed 
to  present  any  intrinsic  difficulty,  but  to  show  that  it  has 
been  considered. 

This  power  is  necessarily  exercised  by  courts  in  dis- 
charge of  their  functions,  and  seems  not  to  have  been 
expressly  given  ;  because  it  is  implied  in  the  duties  which 
a  court  must  perform,  and  the  judical  act  contemplates 
it  in  this  light.  They  have  cognizance  of  all  crimes 
against  the  United  States;  they  are  composed  of  the 
persons  who  can  commit  for  those  crimes ;  and  it  is  ob- 
viously understood,  by  the  legislature,  that  the  judges 
may  exercise  collectively  the  power  which  they  possess 
individually,  so  far  as  is  necessary  to  enable  them  to  re- 
tain a  person  charged  with  an  offense  in  order  to  receive 
the  judgment  which  may  finally  be  rendered  in  his  case. 
The  court  say  this  is  obviously  understood  by  the  legis- 
lature ;  because  there  is  no  clause  expressly  giving  to 
the  court  the  power  to  bail  or  to  commit  a  person,  who 
appears  in  discharge  of  his  recognizance,  and  against 
whom  the  attorney  for  the  United  States  does  not  choose 
to  proceed ;  and  yet  the  thirty-third  section  of  the 
judical  act  evinces  a  clear  understanding  in  the  legisla- 
lature,  that  the  power  to  take  bail  is  in  the  possession  of 
the  court. 

If  a  person  shall  appear  in  conformity  with  his  recog- 
nizance, and  the  court  passes  away  without  taking  any 
order  respecting  him,  he  is  discharged.  A  new  recog- 
nizance, therefore,  or  a  commitment  on  the  failure  to 
enter  into  one,  is  in  the  nature  of  an  original  commit- 
ment, and  this  power  has  been  uniformly  exercised. 

It  is  believed  to  be  a  correct  position,  that  the  power 
to^commit  for  offenses  of  which  it  has  cognizance,  is  ex- 
ercised by  every  court  of  criminal  jurisdiction,  and  that 
courts  as  well  as  individual  magistrates  are  conservators 
of  the  peace. 

Were  it  otherwise,  the  consequence  would  only  be 
Jhat  it  would  become  the  duty  of  the  judge  to  descend 


54  TRIAL    OF    AARON    BURR. 

from  the  bench,  and,  in  his  character  as  an   individual 
magistrate,  to  do  that  which  the  court  is  asked  to  do. 

If  the  court  possesses  the  power,  it  is  certainly  its  duty 
to  hear  the  motion  which  has  been  made  on  the  part  of 
the  United  States  ;  for,  in  cases  of  the  character  of  that 
under  consideration,  its  duty  and  its  power  are  coexten- 
sive with  each  other.  It  was  observed  when  the  motion 
was  made,  and  the  observation  may  now  be  repeated, 
that  the  arguments  urged  on  the  part  of  the  accused 
rather  prove  the  motion  on  the  part  of  the  United 
States  unnecessary,  or  that  inconveniences  may  result 
from  it,  than  the  want  of  a  legal  right  to  make  it. 

The  first  is,  that  the  grand  jury  being  now  in  session 
ready  to  receive  an  indictment,  the  attorney  for  the 
United  States  ought  to  proceed  by  bill  instead  of  ap- 
plying to  the  court,  since  the  only  purpose  of  a  commit- 
ment is  to  bring  the  accused  before  a  grand  jury.  This 
statement  contains  an  intrinsic  error  which  destroys  its 
operation.  The  commitment  is  not  made  for  the  sole 
purpose  of  bringing  the  accused  before  a  grand  jury ;  it 
is  made  for  the  purpose  of  subjecting  him  personally  to 
the  judgment  of  the  law,  and  the  grand  jury  is  only  the 
first  step  towards  that  judgment.  If,  as  has  been  argued, 
the  commitment  was  simply  to  detain  the  person  until 
a  grand  jury  could  be  obtained,  then  its  operation 
would  cease  on  the  assembling  of  a  grand  jury;  but 
such  is  not  the  fact.  The  order  of  commitment  retains 
'its  force  while  the  jury  is  in  session,  and  if  the  prosecutor 
does  not  proceed,  the  court  is  accustomed  to  retain  a 
prisoner  in  confinement,  or  to  renew  his  recognizance  to 
a  subsequent  term. 

The  arguments  drawn  from  the  general  policy  of  our 
laws ;  from  the  attention  which  should  be  bestowed  on 
prosecutions,  instituted  by  special  order  of  the  execu- 
tive;  from  the  peculiar  inconveniences  and  hardships  of 
•  this  peculiar  case  ;  from  the  improper  effects  which 
inevitably  result  from  this  examination,  are  some  of 
them  subjects  for  the  consideration  of  those  who  make 
the  motion,  rather  than  of  the  court ;  and  others  go  to 
the  circumspection  with  which  the  testimony  in  support 
of  the  motion  ought  to  be  weighed,  rather  than  to  the 
duty  of  hearing  it. 


OPINION    ON    MOTION     TO     COMMIT.      55 

It  has  been  said  that  Colonel  Burr  already  stands 
charged  with  treason,  and  that,  therefore,  a  motion  to 
commit  him  for  the  same  offense  is  improper.  But  the 
fact  is  not  so  understood  by  the  court.  The  application 
to  charge  him  with  treason  was  rejected  by  the  judge 
to  whom  it  was  made,  because  the  testimony  offered  in 
support  of  the  charge  did  not  furnish  probable  cause  for 
the  opinion  that  the  crime  had  been  committed.  After 
this  rejection,  Colonel  Burr  stood,  so  far  as  respected  his 
legal  liability  to  have  the  charge  repeated,  in  precisely 
the  same  situation  as  if  it  never  had  been  made.  He 
appears  in  court  now  as  if  the  crime  of  treason  had  never 
before  been  alleged  against  him.  That  it  has  been  alleged 
that  the  government  had  had  time  to  collect  testimony  for 
the  establishment  of  the  fact  that  an  immense  crowd  of 
witnesses  are  attending  for  the  purpose,  that  the  prose- 
cutor in  his  own  judgment  has  testimony  to  support  the 
indictment,  are  circumstances  which  may  have  their  in- 
fluence on  the  motion  for  a  commitment,  or  on  a  con- 
tinuance, but  which  can  not  deprive  the  attorney  for  the 
United  States  of  the  right  to  make  his  motion.  If  he 
was  about  to  send  up  a  bill  to  the  grand  jury,  he  might 
move  that  the  person  he  designed  to  accuse,  should  be 
ordered  into  custody,  and  it  would  be  in  the  discretion 
of  the  court  to  grant  or  to  reject  the  motion. 

The  court  perceives  and  regrets  that  the  result  of  this 
motion  may  be  publications  unfavorable  to  the  justice, 
and  to  the  right  decision  of  the  case  ;  but  if  this  conse- 
quence is  to  be  prevented,  it  must  be  by  other  means 
than  by  refusing  to  hear  the  motion.  No  man,  feeling  a 
correct  sense  of  the  importance  which  ought  to  be 
attached  by  all  to  a  fair  and  impartial  administration  of 
justice,  especially  in  criminal  prosecutions,  can  view 
without  extreme  solicitude,  any  attempt  which  may  be 
made  to  prejudice  the  public  judgment,  and  to  try  any 
person,  not  by  the  laws  of  his  country  and  the  testimony 
exhibited  against  him,  but  by  public  feelings,  which  may 
be,  and  often  are,  artifically  excited  against  the  innocent, 
as  well  as  the  guilty.  But  the  remedy,  for  a  practice 
not  less  dangerous  than  it  is  criminal,  is  not  to  be 
obtained  by  suppressing  motions,  which  either  party  may 
have  a  legal  right  to  make. 


56  TRIAL     OF    AARON    BURR. 

If  it  is  the  choice  of  the  prosecutor  on  the  part  of  the 
United  States  to  proceed  with  this  motion,  it  is  the 
opinion  of  the  court  that  he  may  open  his  testimony. 

Mr.  Hay  then  rose,  and  observed  that  he  was  struck 
with  the  observations  of  the  court  relative  to  "  publica- 
tions." and  he  would  attempt,  if  possible,  to  make  some 
arrangements  with  the  counsel  on  the  other  side  to 
obviate  that  inconvenience ;  and  he  understood  they 
were  to  do  the  same. 

The  counsel  on  both  sides  then  retired  by  permission 
of  the  court  for  this  purpose.  They  returned  in  a  short 
time ;  and  Mr.  Hay  informed  the  court  that  the  counsel 
for  the.  United  States,  and  for  Mr.  Burr,  not  having  yet 
been  able  to  agree  upon  any  arrangement  which  would 
attain  his  object,  namely,  that  of  having  Mr.  Burr  recog- 
nized in  a  sum  sufficiently  large  to  insure  his  appearance 
to  answer  the  charge  of  high  treason  against  the  United 
States,  without  incurring  the  inconvenience  resulting 
from  a  public  disclosure  of  the  evidence  at  this  early 
stage  of  the  proceedings,  wished  to  have  further  time  for 
that  desirable  purpose.  This  was  granted  by  the  court, 
and  it  then  adjourned  till  next  day. 

WEDNESDAY,  MAY  27,  1807. 

Mr.  Hay  informed  the  court  that  all  hopes  of  the 
arrangement  which  he  had  mentioned  yesterday  were  at 
an  end :  for  he  had  received  a  letter  from  Mr.  Burr's 
counsel,  positively  refusing  to  give  additional  bail. 
He  therefore  deemed  it  his  duty  to  go  on  with  the 
examination  of  the  witnesses  in  support  of  his  motion  to 
commit  Mr.  Burr.  He  observed  that  he  regretted 
extremely  that  it  became  necessary  in  his  judgment  to 
pursue  this  course.  He  felt  the  full  force  of  the  objec- 
tions to  a  disclosure  of  the  evidence,  and  to  the  neces- 
sity of  the  court's  declaring  its  opinion  before  the  case 
was-  laid  before  a  jury  ;  but  those  considerations  must 
yield  to  a  sense  of  what  his  engagements  to  the  United 
States  imperiously  demanded  of  him  :  that  in  adducing 
the  evidence,  he  should  observe  something  like  chrono- 
logical order.  He  should  first  read  the  depositions  of 
the  witnesses  who  were  absent,  and  afterwards  bring  for- 


ARGUMENT    OF    MR.   HAY,  57 

ward  those  who  were  present,  so  as  to  disclose  all  the 
events  as  they  successively  happened. 

Mr.  Wickham  stated  that  there  were  two  distinct 
charges  against  Mr.  Burr.  The  first  was  for  a  misde- 
meanor, for  which  he  had  already  entered  into  recogni- 
zance ;  the  second  was  a  charge  of  high  treason  against 
the  United  States,  which  was  once  proposed  without 
success,  and  is  now  again  repeated.  On  this  charge  the 
United  States  must  substantiate  two  essential  points: 
1st.  That  there  was  an  overt  act  committed  ;  and  2d. 
That  Colonel  Burr  was  concerned  in  it.  Everything 
that  does  not  bear  upon  these  points  is  of  course  inad- 
missible ;  the  course  therefore  laid  down  by  the  attorney 
for  the  United  States  is  obviously  improper.  He  pro- 
poses to  examine  his  witnesses  in  a  kind  of  chronolo- 
gical order. 

Mr.  Burr  requires  that  the  evidence  should  be  taken 
in  strict  legal  order.  The  court  and  even  the  opposite 
counsel  will  see  the  propriety  of  observing  this  order. 
If  the  attorney  for  the  United  States  has  affidavits  to 
produce,  let  him  first  demonstrate  that  they  have  a 
right  to  produce  them.  We  first  call  upon  him  to  prove, 
by  strict  legal  evidence,  that  an  overt  act  of  treason  has 
been  committed.  If  he  can  not  establish  that  one  point, 
all  the  evidence  which  he  can  ptoduce,  is  nugatory  and 
unavailing. 

Mr.  Hay  had  no  doubt  that  the  gentleman  would,  if 
he  could,  suppress  all  the  evidence  ;  that  although  that 
gentleman  had  been  so  good  as  to  prescribe  for  him  the 
course  he  ought  to  pursue,  he  should  still  pursue  his 
own  course ;  and  he  would  assure  that  gentleman  that 
he  was  almost  the  last  person  in  the  world  whose  advice 
on  the  present  occasion  he  would  pursue.  Mr.  Hay 
observed  that  he  could  not  consent  to  such  a  separation 
of  the  evidence  as  that  gentleman  required ;  that  he 
should  lay  all  his  evidence  before  the  court,  and  that  the 
court  must  separate  for  themselves. 

The  two  charges  which  are  brought  against  Aaron 
Burr  are  naturally  and  intimately  blended.  They  form 
distinct  parts  of  one  great  design.  What  that  great 
design  was  in  all  its  bearings  and  ramifications,  I  am  not 
absolutely  certain  ;  but  I  have  always  conceived,  that 


58  TRIAL     OF    AARON    BURR. 

before  Mexico  was  invaded,  New  Orleans  was  to  be 
taken.  How,  then,  is  it  possible  to  separate  these  two 
great  allegations?  This  monstrous  design  consists  of 
two  great  plots ;  both  going  on  together  ;  and  both  so 
strongly  connected,  that  accomplishing  the  one  is  pre- 
paratory to  accomplishing  the  other.  If  Aaron  Burr's 
object  was  to  plant  his  standard  in  Mexico,  he  was  first 
to  have  seized  the  shipping  and  banks  of  New  Orleans. 
We  ask,  then,  how  can  we  separate  line  by  line,  and 
word  by  word,  the  evidence  produced  to  prove  these 
two  distinct  allegations?  The  designs  are  connected, 
and  the  evidence  is  connected. 

Mr.  Burr  rose  to  speak,  when  Mr.  Hay  proceeded  to 
the  following  effect :  I  have  a  little  more  yet  to  say.  If, 
sir,  exceptions  are  thus  to  be  continually  taken  to  the 
most  common  measures ;  if  in  this  way  every  inch  of 
ground  is  to  be  disputed,  contrary  to  every  practice  that 
has  prevailed  in  our  country  ;  instead  of  ten  hours,  or 
ten  days,  this  trial  will  take  up  ten  years.  What  an 
extraordinary  proceeding  is  this,  sir !  Why,  sir,  we  are 
not  to  steer  our  course  even  five  inches  without  encount- 
ering some  unusual  difficulty  or  other  !  and  yet  these 
gentlemen  talk  of  precedents.  And  where,  sir,  are  pre- 
cedents for  this,  that  the  counsel  before  an  examining 
court  is  to  be  instructed  how  to  bring  out  his  evidence? 
I  never  saw  such  a  thing  done  before  ;  such  a  thing 
ought  not  to  be  done.  It  is  novel  in  itself,  it  is  impos- 
sible to  be  supported.  Gentlemen,  may  make  motions 
as  they  please  ;  but  they  will  not  drive  me  from  my  pur- 
pose. I  will  or  I  will  not  produce  my  evidence,  whether 
it  pleases  them  or  not.  And,  sir,  it  is  a  poor  compliment 
indeed  that  these  gentlemen  offer  to  the  bench  whom 
they  address !  If  a  deposition  states  anything,'  or  a 
witness  says  anything  which  is  irrevelant  to  the  case, 
can  not  the  court  be  trusted  with  these  distinctions? 
Can  not  they  decide  whether  this  evidence  is  to  be 
weighed,  or  that  to  be  rejected  ?  Do  they  distrust  the 
judgment  of  the  court  ?  No,  sir,  they  do  not ;  but  they 
wish  to  hamper  us  with  every  trifling  difficulty  which 
they  can  throw  into  our  path.  The  present,  sir,  is  a  most 
serious  allegation.  It  affects  the  life  and  character  of 
the  accused.  He  has  come  forward  with  assertions  cf 


ARGUMENT    OF    MR.    WICK  HAM.          59 

his  own  innocence  ;  and  he  charges  us  with  persecution. 
But,  sir,  does  it  evince  any  consciousness  of  innocence, 
thus  to  be  going  against  every  precedent  established  in 
this  or  any  other  country  ?  Sir,  I  trust  that  the  court 
will  go  on  in  spite  of  all  opposition. 

Mr.  Wickkam  stated  that  having  taken  the  liberty  of 
suggesting  this  course  of  proceeding,  he  should  advance 
a  few  observations  on  it  ;  and  he  did  this  the  more 
readily,  because  it  had  been  insinuated  that  no  man, 
standing  like  himself  as  a  professional  man,  would  have 
made  a  motion  of  this  sort.  [Mr.  Hay  declared  he  had 
said  no  such  thing.]  Mr.  Wickham  said  he  had  rights  as 
counsel  for  his  client,  and  he  had  rights  belonging  to 
himself.  No  man  is  heard  for  himself;  but  so  long  as 
they  employed  professional  men  to  defend  them,  these 
had  a  right  to  pursue  the  best  course  they  could  devise 
for  the  benefit  of  their  client.  He  would  therefore  go 
on. 

Mr.  Hay  speaks  of  two  distinct  charges;  the  invasion 
of  Mexico,  and  the  seizing  of  New  Orleans :  but  he 
declares  them  to  be  necessarily  blended.  How  so  ? 
Could  not  a  man  "  levy  war  "  against  the  United  States 
without  an  invasion  of  Mexico?  In  Pennsylvania  we 
have  seen  an  insurrection  against  the  United  States,  but 
no  invasion  of  Mexico.  Much  is  said  of  the  loss  of 
time,  and  of  certain  difficulties  thrown  in  the  way  of  the 
prosecution. 

As  to  the  first,  sir,  let  the  world  decide  whether  he  or 
we  have  most  pleaded  for  delay ;  at  all  events,  we  can 
not  entertain  any  fear  that  this  court  will  be  impatient. 
As  to  the  difficulties  in  their  way,  we  will  say  this :  let 
the  gentlemen  pursue  a  regular  course  ;  let  them  bring 
this  business  before  the  grand  jury,  and  we  shall  make 
no  objections.  But,  sir,  if  they  pursue  this  course  over 
and  over  again  ;  if  they  are  continually  throwing  diffi- 
culties in  our  way ;  we  Shall  mete  out  to  them  the  same 
measure  which  they  mete  to  us.  Who  has  ever  known 
a  proceeding  like  the  present  ?  Who  has  ever  heard  of 
the  practice  of  coming  out  at  such  a  stage  as  this  with  a 
distinct  substantive  charge,  not  growing  out  of  the  evi- 
dence before  the  court,  but  from  other  sources  !  Surely 
these  gentlemen  do  not  cry  out  for  mercy :  they  stand 


60  TRIAL     OF    AARON     BURR. 

upon  the  law  ;  and  law  they  shall  have.  Gentlemen 
-say  that  no  such  exception  as  this  was  ever  taken  before 
an  examining  magistrate.  But,  sir,  where  are  the  re- 
porters that  attend  private  magistrates,  to  record  their 
precedents  ?  Magistrates  are  to  go  by  law  ;  and  what 
law?  They  must  observe  the  rules  of  evidence.  Would 
gentlemen  introduce  their  witnesses  without  swearing 
them  ?  But  the  court  must  have  all  the  evidence  before 
them;  and  they  "must  separate  "  the  good  from  the 
bad:  but  is  this  consistent  with  common  sense;  is  it 
consistent  with  the  books  ?  The  practice  has  always 
been,  when  an  attorney  introduces  a  writing  into  court, 
for  the  court  to  ask  what  he  is  to  prove  by  it ;  when  he 
introduces  a  paper,  to  show  the  general  contents  of  that 
paper.  This  was  the  practice  on  the  memorable  trials 
of  Hardy  and  Tooke  in  England.  In  chancery  business, 
indeed,  a  practice  has  crept  in  for  the  judge  himself  to 
read  the  papers  without  knowing  anything  of  their  gen- 
eral contents  ;  but  this  is  done  merely  for  the  sake  of 
convenience,  and  will  not  certainly  apply  to  criminal 
prosecution. 

It  is  asked,  "Are  we  afraid  to  trust  the  court"  with 
this  evidence  ?  No,  sir,  we  are  afraid  to  trust  the  court 
with  nothing ;  but  we  do  fear  to  prejudicate  the  mind 
of  the  grand  jury,  by  this  premature  and  illegal  ex- 
hibition of  evidence.  Let  the  time  come,  when  Colonel 
Burr  is  to  come  regularly  before  the  jury,  and  we  shall 
then  see  who  shrinks  from  the  testimony.  A  number  of 
other  remarks  have  been  made,  sir,  about  Colonel  Burr's 
apprehensions.  All  propriety  and  decorum  have  been 
set  at  naught ;  every  idle  tale  which  is  set  afloat  has 
been  eagerly  caught  at.  The  people  here  are  interested 
by  them  ;  and  they  circulate  all  over  the  country.  Sir, 
if  the  attorney  for  the  United  States  shall  choose  to 
send  up  his  bills  before  the  grand  jury,  then  I  hope  the 
whole  evidence  will  be  laid  before  the  world,  and  we 
shall  hear  no  more  of  rumors  and  prejudices. 

These  gentlemen  say :  "  Shall  you  pretend  to  order 
us ;  shall  you  dictate  ?"  No,  sir,  the  law  must  dictate. 
The  gentlemen,  indeed,  have  produced  a  series  of  irrele- 
vant writings  and  papers ;  and  they  must,  forsooth, 
pursue  a  chronological  order.  No,  sir,  away  with  such 


EVIDENCE    AS    TO     OVERT    ACTS.         6r 

informalities.  Let  gentlemen  prove  an  assemblage  of 
men  of  war.  Let  them  prove  the  overt  act.  If  they  do 
not,  I  confidently  hope  that  Colonel  Burr  will  be  dis- 
charged. Mr.  Wickham  here  read  a  quotation  from 
Foster's  Discourses  on  High  Treason. 

Mr.  Burr  did  not  expect  an  opinion  of  the  court,  since 
no  motion  had  been  made.  Mr.  Wickham  had  only 
given  notice  to  the  opposite  side  that  they  should  fol- 
low the  strictest  rules  of  law.  If  it  was  for  a  suit  of  £io 
only,  he  should  ask  for  the  laws  of  evidence. 

The  chief  justice  said  it  would  certainly  be  better,  if 
evidence  was  produced,  to  prove  the  facts  first,  and  the 
evidence  to  show  their  coloring ;  for  no  evidence  cer- 
tainly has  any  bearing  upon  the  present  case,  unless  the 
overt  act  be  proved.  However,  if  the  attorney  for  the 
United  States  thinks  the  chronological  order  the  best, 
he  may  pursue  his  own  course;  but  the  court  trusts  to 
him,  that  he  will  produce  nothing  which  does  not  bear 
upon  the  case. 

Mr.'  Wirt. — We  coincide  with  the  opinion  of  the  court 
that  an  overt  act  ought  to  be  proved,  and  that  we  ought 
to  produce  no  evidence  at  all,  unless  we  had  enough  to 
prove  the  overt  act.  We  do  believe  that  we  have  suf- 
ficient evidence  for  this  purpose ;  but  we  think  it  best  to 
pursue  something  like  a  chronological  order,  to  take  this 
conspiracy  in  its  germ,  to  go  on  step  by  step,  and  to 
trace  out  every  event  as  it  subsequently  arose. 

Mr.  Hay  observed  that  it  would  be  necessary  to  give 
evidence  to  show  the  temper  of  the  mind  of  the  accused  ; 
as,  for  instance,  Mr.  Stoddert  would  show  his  hostility  to 
the  administration,  and  even  to  the  government.  To 
show  this  disposition  of  mind  might  lead  to  treasonable 
designs,  to  plans,  and  thence  to  overt  acts.  This  was 
the  natural  order  of  things,  and  of  the  evidence.  He 
hoped  that  in  drawing  out  this  evidence,  the  court  would 
rely  upon  his  candor  and  humanity,  that  he  would  pro- 
duce none  which  he  did  not  believe  to  bear  upon  the 
fact. 

Mr.  Randolph  said  that  however  he  might  respect 
that  gentleman's  humanity,  he  knew  too  well  the  temper 
cf  any  prosecution  to  expect  much  from  it.  They 
y.icr  for  strict  law,  and  so  are  we.  In  England,  before 


62  TRIAL     OF    AARON    BURR. 

a  witness  is  heard,  it  must  be  stated  in  general  terms 
what  he  intends  to  prove.  The  same  practice  ought 
to  prevail  here.  Let  the  attorney  for  the  United  States 
state  the  substance  of  each  part  of  the  testimony  he 
is  to  produce,  and  the  court  will  then  perceive  whether 
it  is  calculated  to  bear  upon  the  case  itself,  or  whether 
it  is  only  intended  to  inflame  the  public  prejudice 
against  Colonel  Burr.  We  demand  that  the  overt 
act  be  first  proved  ;  without  that,  the  accessorial  evi- 
dence is  of  no  kind  of  use.  Let  that  be  established, 
and  the  accessory  facts  will  then  have  their  weight.  I 
hope,  sir,  if  the  attorney  for  the  United  States  does  not 
introduce  his  evidence  on  that  point,  we  shall  be  at 
liberty  to  suppress  all  the  irrelevant  testimony. 

Mr.  Botts  said  he  should  leave  it  to  the  court. 

Mr.  Hay. — Agreed. 

The  chief  justice  decided  that  the  attorney  for  the 
United  States  might  pursue  whatever  course  he  thought 
best. 

Mr.  Botts. — Send  us  the  written  testimony  before  you 
submit  it  to  the  court. 

Mr.  Hay. — As  I  said  before,  I  shall  take  up  the  depo- 
sitions first,  and  then  the  viva  voce  testimony  in 
chronological  o'rder.  I  shall  first  introduce  General 
Wilkinson's  deposition. 

Some  desultory  conversation  then  ensued  between 
Mr.  Hay  and  Mr.  Botts,  on  the  latter  demanding  the 
liberty  of  examining  the  deposition.  At  length,  Mr. 
Hay  handed  the  paper  to  him.  Mr.  Botts  then  addressed 
the  court. 

Mr.  Botts. — In  my  objections  to  General  Wilkinson's 
affidavit,  I  may  be  compelled  to  question  the  correctness 
of  principles,  in  favor  of  which  the  court  has  expressed 
an  impression.  It  has  been  our  misfortune  to  have  been 
drawn  out  into  a  desultory  discussion  of  some  of  the 
propositions,  fixing  limits  to  the  examination ;  when 
these  propositions  had  such  relation  to  each  other, 
and  among  themselves,  as  to  render  it  difficult  to  fortify 
one  effectually  against  assault,  without  the  support  of 
the  others.  And  although  the  subject  was  not  wantirgj 
in  novelty  or  importance  to  fit  it  for  solemn  argument, 
yet  the  complaints  of  the  prosecutor,  so  often,  so  loudly, 


ARGUMENT    OF    MR.   BOTTS.  63 

and  so  causelessy  repeated,  have  forced  from  the  court  a 
premature  intimation  of  judgment.  I  feel  the  perplex- 
ity of  my  situation  most  sensibly,  and  shall  hope  for  the 
indulgence  of  the  oourt,  if  I  should  unwarily  stray  into 
the  seeming  indecorum  of  resisting  now  and  then  an 
inclination  of  the  mind  of  the  bench.  Whenever  I  ven- 
ture into  a  scene  so  delicate,  I  shall  present  to  the  court 
authorities  not  to  be  resisted. 

The  opinion  of  the  supreme  court  overruling  the 
objection,  that  the  oath  administered  to  General  Wil- 
kinson was  extrajudicial,  fixes  the  law  for  this  court. 
The  best  evidence  that  the  nature  of  the  case  will  admit 
of,  should  be  produced.  This  rule  applies  to  every  stage 
of  every  case  in  every  court.  The  failure  to  produce  the 
best  evidence  that  the  nature  of  the  case  admits  of,  fur- 
nishes a  presumption  that  the  higher  evidence  left  be- 
hind, would,  if  produced,  make  against  the  party  offer- 
ing the  weaker.  All  this  is  familiar  in  civil  cases,  where 
4Os.  may  be  the  quantum  of  interest  in  litigation.  The 
benefit  of  this  common  law,  and  common  sense,  ought 
not  to  be  lost  when  the  liberty  of  a  citizen  is  concerned ; 
when  a  six  months'  imprisonment  in  a  dungeon  may  be 
the  object  of  the  motion.  The  supreme  court  con- 
sidered an  affidavit  as  the  best  evidence  the  case  then 
admitted  of.  The-  accusation  was  fresh,  and  neither 
time  nor  means  had  been  allowed  for  procuring  a  per- 
sonal attendance.  Now,  the  accusation  is  old,  and  the 
government  has  had  all  the  necessary  means  of  bringing 
the  witness  here.  The  circumstances  do,  therefore,  now 
admit  of  higher  evidence  than  an  ex parte  affidavit. 

The  viva  voce  testimony  of  General  Wilkinson  is  the 
right  of  my  client.  No  man  should  be  deprived  of  the 
benefit  of  a  cross-examination,  without  necessity.  You 
have  in  another  place,  said,  sir,  that  it  was  to  be  made 
out  only  by  inference  from  General  Wilkinson's  affida- 
vit, that  Colonel  Burr  was  the  writer  of  the  letter  in 
cypher.  If  the  witness  was  here,  he  would  impugn  that 
inference,  by  swearing  that  it  was  not  in  Colonel  Burr's 
handwriting.  If  General  Wilkinson  was  present,  would 
you  admit  his  affidavit?  If  he  ought  to  have  been  pres- 
ent, and  the  government  would  not  get  him,  shall  the 
prosecution  be  favored  for  its  negligence  ? 


64  TRIAL     OF    AARON    BURR. 

But  the  present  charge  is  confined  to  high  treason,  in 
levying  war  against  the  United  States  ;  and  the  great 
question  is,  whether  Wilkinson's  evidence  is  in  any  form 
pertinent  to  the  charge  ?  I  do  not  mean  to  urge  the 
objection,  that  if  it  develops  any  criminal  purpose,  it  is 
not  a  treasonable  purpose ;  for  this  construction  has 
been  settled  by  the  supreme  court.  Admitting  for  the 
time,  that  it  contained  evidence  of  a  treasonable  pur- 
pose, and  that  the  opinion  of  the  supreme  court  is  to  be 
overruled,  still  the  evidence  would  be  most  impertinent 
upon  the  present  charge  of  actual  treason. 

I  have  alluded  to  legal  propositions  intended  to  be 
pressed,  as  forming  legal  restrictions  upon  the  task  in 
which  we  are  engaged.  I  will  first  combine  them,  that 
their  fitness  to  each  other,  and  their  collective  effects 
may  be  seen.  My  second  process  will  be  to  disunite 
them,  and  by  an  analytical  comparison  of  them  with 
the  known  principles  of  our  treason  laws,  to  ascertain 
their  legality. 

No  evidence  of  any  matter  ought  to  be  given  until 
proof  shall  be  adduced  that  there  was  an  actual  war 
levied  in  the  district  of  Virginia ;  and  until  it  is  proved 
that  an  overt  act  of  treason,  in  that  war,  was  done  by 
Mr.  Burr,  which  proofs  shall  be  by  two  witnesses  at 
least.  First,  It  must  be  proved  that  there  was  an  actual 
war.  A  war  consists  wholly  in  acts  and  not  in  intentions. 
The  acts  must  be  in  themselves  acts  of  war;  and  if  they 
be  not  so  intrinsically,  words  or  intentions  can  not  make 
them  so.  In  England,  when  conspiring  the  death  of  the 
king  was  treason,  the  quo  animo  formed  the  essence  of 
the  offense  ;  but  in  America,  the  national  convention  has 
confined  treason  to  the  act.  We  can  not  have  a  con- 
structive war  within -the  meaning  of  the  constitution. 
An  intention  to  levy  war  is  not  evidence  that  a  war  was 
levied.  Intentions  are  always  mutable  and  variable ; 
the  continuance  of  guilty  intentions  is  not  to  be  pre- 
sumed. If  this  were  not  the  case,  the  avowal  of  a  pur- 
pose to  levy  war  would  fix  the  crime.  For  a  proved 
intention  might  be  attached  to  the  next  innocent  act  of 
the  person  who  formed  it ;  and  so,  preparations  of  emi- 
gration be  turned  into  a  levying  of  war.  It  has  been 
eloquently  declared  that  war  can  not  exist  in  a  closet,  or 


ARGUMENT    OF    MR.  BOTTS.  65 

a  corner  ;  but  when  levied,  it  must  be  in  the  face  of  the 
world.  This  can  not  be  true,  if  the  recesses  of  the 
bosom  are  to  be  explored  for  any  of  the  ingredients  in 
the  composition  of  the  crime  of  levying  war.  The 
guilty  intention  must  be  made  manifest  from  the  act 
alone.  General  Wilkinson  professes  to  know  nothing 
but  of  intentions,  which  are  not  evidence  of  acts. 

Secondly,  The  war  must  not  only  have  been  levied, 
but  Mr.  Burr  must  be  proved  to  have  committed  an 
overt  act  of  treason  in  that  war.  A  treasonable  inten- 
tion to  co-operate  is  no  evidence  of  actual  co-operation. 
The  acts  of  others,  even  if  in  pursuance  of  his  plan, 
would  be  no  evidence  against  him.  It  might  not  be 
necessary  that  he  should  be  present,  perhaps;  but  he 
must  be,  at  the  time  of  levying  the  war,  co-operating  by 
acts,  or,  in  the  language  of  the  constitution,  be  commit- 
ting overt  acts.  The  acts  of  associates,  in  a  treasonable 
plan,  in  countries  where  the  doctrine  of  constructive  war 
prevails,  can  never  be  given  in  evidence  against  the  ac- 
cused, until  after  the  plan  has  been  proved  on  the  latter, 
and  until  such  acts  shall  appear  to  have  been  within  the 
limits  of  that  plan.  I  East's  Crown  Law,  96,  97.  Part 
of  the  proof  in  this  affidavit  is  of  the  declarations  of  a 
supposed  associate,  as  to  what  the  plan  itself  was.  But 
in  this  country,  as  there  can  not  be  a  constructive  trea- 
sonable war,  plans  and  acts  of  associates  can  only  come 
in  when  the  former  have  been  executed,  and  the  latter 
have  been  visibly  and  publicly  assisted.  Tucker's  Black, 
vol.  4,  Appendix  B. 

Thirdly,  The  overt  act  by  the  accused,  in  an  actual 
war,  must  not  only  be  proved,  but  it  must  be  proved  to 
have  been  committed  within  this  district.  The  fifth 
article  of  the  constitution  of  the  United  States,  and  the 
eighth  article  of  the  amendments  to  the  constitution, 
require  that  the  trial  shall  be  by  a  jury  of  the  district 
where  the  offense  was  committed.  The  oath  of  the 
grand  jury  is,  accordingly,  to  inquire  of  offenses  within 
the  district. .  The  jurisdiction  of  this  court  is  also 
limited,  by  express  law,  to  offenses  within  the  district  ; 
and  it  is  obviously  true,  that  the  court's  jurisdiction 
can  not  be  broader  in  an  incipient  inquiry  than  it  would 
be  in  its  connection  with  a  jury  on  a  final  trial.  Doctor 
i— 5 


66  TRIAL     OF    AARON    BURR. 

Blackstone,  in  the  fourth  volume  of  his  Commentaries 
303,  refers  to  the  oath  of  the  grand  jury,  "  to  inquire 
into  offenses  committed  within  the  body  of  the  county, 
and  denies  the  right  of  the  grand  jury  to  inquire  into 
facts  out  of  the  county.  In  preparing  a  work  for  the 
grand  jury,  the  court  can  not  disregard  the  limits  of  their 
power.  The  crime  to  be  committed  in  the  district  must 
be  wholly  committed  there.  At  the  common  law,  if  the 
stroke  was  given  in  one  county,  and  the  person  striken 
died  in  another,  the  murderer  could  not  be  prosecuted 
in  either.  To  remedy  this  defect,  and  to  provide  for 
others  similar  to  it,  many  provisions  have  been  made  by 
the  English  parliament.  4  Black.  303-5.  But  the 
English  parliament  never  did  alter  the  common  law,  as 
it  respected  the  crime  of  levying  an  actual  treasonable 
xvar.  Kelyng,  15.  The  constitution  and  act  of  congress 
have  both  adopted  the  rule  of  location.  Tucker's  Black- 
stone,  vol  4,  Appendix  B,  49,  50,  51.  Granting,  then, 
that  intention  may  make  that  war,  which  would  not  other- 
wise be  so,  still,  as  a  formed  intention  is  no  proof  of  its  own 
continuance  or  execution,  the  intention  must  be  proved 
to  have  been  cotemporaneous  and  homogeneous  with 
the  act  in  the  district.  In  this  view,  the  intention  forms 
a  constituent  part  of  the  offense.  If  one  constituent 
part  of  the  offense  can  be  brought  from  without  the  dis- 
trict, and  coupled  with  others  in  the  district,  any  one 
constituent  part,  or  number  of  constituent  parts  of  the 
crime  may  be  brought  from  without  the  district.  Then 
one  component  part  only  happening  in  Virginia,  out  of 
one  hundred  necessary  to  its  completion,  would  give  this 
court  jurisdiction  :  and  thence  one,  out  of  one  hundred 
parts  of  a  crime,  would  be  a  crime  within  the  meaning 
of  the  constitution.  Let  us  view  the  consequences  of  this 
logic. 

Upon  proof  against  Mr.  Burr  touching  a  crime,  part 
of  which  was  committed  in  this  district,  he  may  be  tried 
and  acquitted.  In  Ohio  he  may  be  indicted,  and  evi- 
dence may  be  prepared  touching  the  same  crime.  Can 
he  plead  autrefois  acquit  in  bar,  by  averring  that  the 
crimes  charged  in  the  two  states  was  one  and  the  same  ? 
His  averment  would  be  against  the  record  of  the  indict- 
ment charging  a  complete  separate  crime  in  each  dis- 


ARGUMENT    OF    MR.   BOTTS.  67 

trict.  Will  you,  sir,  put  upon  the  constitution  such  a 
construction  as  will  subject  a  citizen  to  be  hunted  down, 
by  trial  after  trial,  in  state  after  state,  as  long  as  the  per- 
secuting spirit  of  a  wicked  executive  may  last?  Do  not 
understand  me  to  allude  in  this  to  the  present  adminis- 
tration, the  characters  of  which  I  have  been  in  the  habit 
of  admiring  ;  but  the  construction  now  to  be  fixed  must 
go  down  to  posterity,  and  may  be  made  instrumental  in 
effecting  the  worst  of  state  oppressions. 

Remember  that  Mr.  Burr  has  forborn  to  avail  himself 
of  this  legal  principle  in  Kentucky  and  in  the  Mississippi 
Territory,  in  order  that  the  merits  of  his  case  might  . 
come  before  the  inquests  ;  but  it  ought  now  to  be  agreed 
that  he  should  protect  himself  from  being  harassed  fur- 
ther; by  calling  into  exercise  the  great  principles  of  the 
constitution,  declaring  that  no  man  shall  be  twice  put  in 
jeopardy  of  his  life  for  the  same  offense.  See  amend- 
ments to  constitution.  Now,  what  part  of  the  affidavit 
speaks  of  a  fact  within  the  district  ? 

Fourthly,  The  overt  act  of  treason  by  Mr.  Burr 
within  the  district  must  be  proved  by  two  witnesses. 
The  constitution  and  act  of  congress  require  two  wit- 
nesses, not  only'  to  the  act,  but  to  the  treasonable 
quality  of  the  act.  After  full  time  has  been  afforded  to 
collect  all  the  witnesses  in  the  power  of  the  government, 
the  accused  ought  not  to  be  deprived  of  his  liberty, 
unless  it  was  believed  that  the  evidence  collected  would 
convict  him  :  imprisonment  is  only  intended  for  trial 
and  not  for  punishment.  By  what  does  General  Wilkin- 
son's affidavit  make  out  intentions?  The  answer  is,  by  the 
confessions  of  the  accused  or  of  his  supposed  associates. 
The  confessions  of  the  accused,  by  the  express  words 
of  the  constitution,  are  not  evidence,  unless  made  in 
open  court.  Confessions  are  often  admitted  from  neces- 
sity, to  get  at  crimes  that  deal  in  secrecy,  as  larceny,  for- 
gery, and  robbery ;  but  the  safety  of  the  people  requires 
that  crimes  which  deal  in  publicity,  as  does  the  crime  of 
a  treasonable  war,  should  not  be  proved  by  evidence  so 
incapable  of  exculpatory  proof.  When  an  honorable 
gentleman  (Mr.  Giles)  was  challenged  the  other  day 
upon  a  suggestion  of  his  having  expressed  himself  upon 
the  case  of  the  accused,  he  said  he  was  indisposed  to 


68  TRIAL     OF    AARON    BURR. 

hear  evidence  of  unguarded  expressions,  in  which  the 
witness  might  have  mistaken  his  meaning;  have  misun- 
derstood what  he  said,  or  not  have  heard  all  that  he 
said  ;  or  have  substituted  his  own  inferences  for  the 
words  of  the  speaker.  Blackstone  and  Foster  have 
characterized  it  to  be  the  most  dangerous  species  of 
evidence,  ever  liable  to  misconstruction  and  abuse.  But 
if  the  constitution  has  prescribed  it,  why  now  question 
its  exclusion  ?  If  the  confessions  of  the  accused  out  of 
court  could  not  be  evidence  against  him,  could  the  con- 
fessions of  real  accomplices  be  evidence  against  him  ? 
Yet  the  evidence  of  Wilkinson  relates,  in  part,  to  the 
confession  of  pretended  accomplices,  no  way  proved  to 
have  been  authorized  by  Mr.  Burr  to  say  or  to  do  any- 
thing. 

But  why,  it  may  be  asked,  is  Mr.  Burr  afraid  to 
hear  illegal  evidence,  if  he  is  consciously  innocent  ? 

We  see  witnesses  from  different  and  distant  parts  of 
the  United  States,  whose  names,  faces,  and  characters, 
are  alike  unknown  to  Mr.  Burr.  He  can  not  ascertain 
upon  what  parts  of  his  life  or  conduct  they  are  expected 
to  speak,  or  upon  what  information  their  evidence  may 
rest.  His  character  has  long  been  on  public  torture; 
and  wherever  that  happens,  with  either  a  good  or  a  bad 
man,  the  impulses  to  false  testimony  are  numerous. 
Sometimes  men  emerge  from  the  sinks  of  vice  and  ob- 
scurity into  patronage  and  distinction  by  circulating 
interesting  tales,  as  all  those  of  the  marvelous  kind  are. 
Others,  from  expectations  of  office  and  reward,  volun- 
teer; while  timidity,  in  a  third  class,  seeks  to  guard 
against  the  apprehended  danger,  by  magnifying  trifling 
stories  of  alarm.  These  works  of  exaggeration  and  prop- 
agation are  frequently  the  subjects  of  idle  amusement. 
The  authors,  until  they  commit  themselves,  have  no 
just  conception  of  the  mischiefs  they  are  hatching;  but 
when  they  are  afterwards  called  to  give  testimony,  per- 
jury will  not  appall  them,  if  it  be  necessary  to  save  their 
reputations  for  consistency  or  veracity.  If  the  evidence 
be  restricted  within  the  legal  limits,  the  purest  of  char- 
acters, under  accusation  of  treason,  will  have  hazard 
enough  to  run.  A  judge,  whose  experience  of  these  dan- 
gers was  great,  thus  speaks  on  the  subject :  "  The  rule  of 


ARGUMENT    OF    MR.    WICKHAM.          69 

rejecting  all  manner  of  evidence  in  criminal  prosecutions, 
that  is  foreign  to  the  point  at  issue,  is  founded  on  sound 
sense  and  common  justice.  For  no  man  is  bound,  at  the 
peril  of  life  and  liberty,  fortune  or  reputation,  to  answer, 
at  once,  and  unprepared,  for  every  action  of  his  life." 
Few,  even  of  the  best  of  men,  would  choose  to  be  put  to 
it.  And  had  not  those  concerned  in  the  state  prosecu- 
tions, out  of  their  zeal  for  the  public  service,  sometimes 
stepped  over  this  rule  in  the  case  of  treason,  it  would, 
perhaps,  have  been  needless  to  have  made  an  express 
provision  against  it  in  that  case.  Foster's  C.  L.  246. 

Mr.  Wickham  regretted  that  so  much  time  had  been 
consumed  ;  but  hoped  the  court  would  acquit  them  of 
any  intention  to  waste  it.  When  any  illegal  motion  was 
introduced  by  the  opposite  counsel,  he  felt  it  as  a  serious 
duty  due  to  his  client  to  resist  it  with  firmness.  That 
for  his  own  part  he  should  not  forget  that  he  was  before 
the  circuit  court  of  the  United  States,  nor  should  he  so 
far  lose  his  respect  for  their  discernment  as  to  bring 
forward  motions  which  he  believed  to  be  illegal,  only 
to  waste  the  time  of  the  court  ;  that  he  hoped  none  but 
legal  evidence  would  be  suffered  to  be  introduced  ;  none 
but  competent  witnesses  to  be  heard  ;  and  if  this  rule 
was  not  rigidly  adhered  to,  what  was  to  prevent  the 
counsel  on  the  other  side  from  producing  any  and  every 
kind  of  evidence  that  they  pleased  ? 

It  can  not  be  supposed  (said  Mr.  Wickham)  that  we 
are  afraid  of  this  affidavit.  What  is  in  it,  which  has  not 
been  already  known  and  scattered  in  every  loose  sheet 
of  a  newspaper  throughout  the  United  States?  It  is  not 
that  we  resist  it  in  point  of  fact;  but  on  the  ground 
of  principle.  We  wish  two  points  to  be  settled  ;  are 
affidavits  to  be  read  at  all  on  such  a  motion,  and  at 
such  a  crisis  of  the  prosecution  as  this?  and  if  so,  ought 
they  to  be  read  if  the  witnesses  themselves  were  present  ? 
Would  it  be  right,  if  they  were  in  the  next  street  or  the 
next  county  ?  Would  it  in  fact  be  right  if  there  was  time 
enough  to  produce  the  "  viva  voce "  testimony  itself? 
Mr.  Burr  had  a  right  to  be  confronted  with  General 
Wilkinson.  He  had  a  right  to  cross-question  and  ex- 
amine him  on  all  the  statements  which  he  has  made. 
The  government  had  power  to  bring  him  here.  Why  is 


70  TRIAL   OF  AARON  BURR 

he  not  here?  Ought  not  some  satisfactory  excuse  to  be 
made  for  him  ?  He  is  an  officer  of  this  government ; 
and  the  government  might  have  procured  his  attend- 
ance, as  well  by  a  special  order  as  by  a  civi1.  process. 
Has  any  subpoena  been  taken  out?  inquired  Mr.  Wick- 
ham,  addressing  himself  to  the  clerk. 

The  clerk  replied  that  no  subpoena  filled  up  with  Gene- 
ral Wilkinson's  name  had  issued  from  his  office ;  but  that 
blank  subpoenas had  been  taken  out. 

Mr.  Wickham. — No  one  knows,  sir.  There  was  time 
enough  to  have  him  here.  The  mail  travels  from  Wash- 
ington to  New  Orleans  in  seventeen  days.  He  might 
have  come  ;  but  if  he  has  not,  why  is  not  some  satis- 
factory excuse  brought  forward?  We  want,  sir,  to  see 
this  gentleman  cross-examined.  We  want  to  see  him 
confronted  with  other  witnesses.  This  is  one  ground  on 
which  we  object  to  the  production  of  this  affidavit. 

Another  ground  is  that  according  to  the  decision  of  the 
supreme  court  of  the  United  States,  this  affidavit  does  not 
bear  upon  the  present  motion.  Mr.  Swartwout,  who  was 
said  to  be  connected  with  Mr.  Burr,  was  discharged  by 
them,  because  this  affidavit  did  not  apply  to  the  charge 
of  treason.  Are  counsel,  then,  to  be  suffered  to  produce 
testimony  on  any  subject  that  they  please?  A  third 
objection  is,  that  General  Wilkinson  does  not  relate  a 
single  act  committed  in  the  district  of  Virginia.  In  Vir- 
ginia ?  no,  nor  anywhere  else.  The  attorney  for  the 
United  States  says  that  he.  will  prove  the  overt  act 
hereafter.  But,  sir,  I  repeat  it  that  the  rules  of  evidence 
apply  not  only  to  the  admissibility  of  evidence,  but  to 
the  order  in  which  it  is  to  be  produced.  Let  them  first 
prove  an  overt  act,  if  they  can ;  and  then  they  are  at 
full  liberty  to  prove  the  color  of  it. 

Again,  sir,  this  deposition  is  not  the  best  evidence 
which  could  be  produced,  and  which  the  laws  require. 
General  Wilkinson  speaks  of  a  cyphered  letter,  and  of 
its  contents,  as  well  as  he  can  make  them  out.  Now,  sir. 
where  is  this  letter,  and  where  is  the  key  to  it  ?  Why 
are  they  not  here  ?  Why  are  they  not  produced  before 
you  ?  For  these  reasons,  Mr.  Wickham  hoped  that  the 
court  would  not  suffer  the  affidavit  to  be  read  in  evi- 
dence. 


ARGUMENT    OF    MR,   RANDOLPH.          71 

Mr.  Hay.  —We  shall  not,  sir,  be  carried  from  our 
course  by  speeches,  however  long  or  animated  they. may 
be.  But,  sir,  permit  me  to  give  those  gentlemen  a  little 
information.  Why  talk  of  the  affidavit  before  you  ? 
Do  these  gentlemen  know  that  we  can  positively  prove 
the  astonishment,  the  regret,  and  the  denunciation  which 
escaped  from  Mr.  Burr,  when  he  first  heard  of  the  publi- 
cation of  his  cyphered  letter  !  Let  them  first  know  what 
we  can  prove,  before  they  abondon  themselves  to  their 
triumph.  General  Wilkinson's  affidavit  is  the  first  in  the 
series  of  our  proofs,  and  it  is  for  this  reason  that  we 
wish  to  commence  with  it. 

Mr.  Edmund  Randolph. — Sir,  we  do  not  know  what 
those  gentlemen  expect  to  prove  ;  but  we  do  object  to 
the  production  of  General  Wilkinson's  affidavit  from 
what  is  already  known  ;  we  know  it  to  be  perfectly  in- 
applicable to  the  present  question.  Sir,  this  species  of 
evidence  is  directly  in  the  face  of  our  bill  of  rights,  and 
of  the  constitution  of  the  United  States.  "  In  all  crimi- 
nal prosecutions,  the  accused  shall  enjoy  the  right  to  a 
speedy  and  public  trial,  by  an  impartial  jury  of  the  state 
and  district  wherein  the  crime  shall  have  been  committed  ; 
which  district  shall  have  been  previously  ascertained 
by  law ;  and  to  be  informed  of  the  nature  and  cause  of 
the  accusation ;  to  be  confronted  with  the  witnesses 
against  him,1'  &c.  Mr.  Burr,  then,  sir,  has  a  gene- 
ral constitutional  right  to  be  confronted  with  the 
witnesses  against  him.  Let  gentlemen  show  any  excep- 
tion to  it,  if  they  can.  And  what  have  they  done  ? 
Why,  they  have  shown  here  an  obsolete  and  evaporated 
affidavit,  for  which  there  is  no  necessity  and  no  law. 
The  law  positively  declares  that  the  best  evidence  is 
always  to  be  had  ;  that  when  a  witness  is  attainable,  his 
affidavit  is  not  to  be  admitted  as  testimony.  We  stand, 
therefore,  sir,  upon  the  bill  of  rights.  Gentlemen  may, 
indeed,  attempt  to  evade  its  provisions  by  saying  that 
they  can  hereafter  prove  the  material  act ;  but  I  hope 
that  this  court  will  never  countenance  such  illegal  pro- 
ceedings. 

The  chief  justice  stated  that  the  supreme  court  of  the 
United  States  had  already  decided  that  an*  affidavit 
might  be  admitted  under  certain  circumstances ;  but 


72  TRIAL     OF    AARON    BURR. 

they  had  also  determined  that  General  Wilkirr* ..*.  3 
affidavit  did  not  contain  any  proof  of  an  overt  act;  that 
he  was  certainly  extremely  willing  to  permit  the  attor- 
ney for  the  United  States  to  pursue  his  own  course  in 
the  order  of  drawing  out  his  evidence,  under  a  full  con- 
fidence that  he  would  not  waste  the  time  of  the  court  by 
producing  any  extraneous  matter  ;  but  where  was  the 
necessity  of  producing  General  Wilkinson's  affidavit 
first?  If  there  was  no  other  evidence  to  prove  the  overt 
act,  Wilkinson^s  affidavit  goes  for  nothing ;  for  the  su- 
preme court  of  the  United  States  have  already  decided, 
and  by  that  decision  he  should  have  conceived  himself 
bound,  even  if  he  had  dissented  from  it.  Why,  then, 
produce  this  affidavit  ? 

Mr:  Hay  observed  that  there  was  a  great  difference 
between  the  course  prescribed  by  the  court,  and  the  one 
which  he  would  have  pursued ;  and  that  he  seriously 
believed,  if  he  had  been  left  to  himself,  he  would  at  least 
have  satisfied  the  court  itself  that  his  own  course  was 
the  best.  That  as  to  General  Wilkinson's  affidavit,  it 
might  even  now  be  confronted  with  witnesses ;  as 
Messrs.  Bollman  and  Swartwout  were  present,  and  would 
say  whether  such  and  such  conversations  were  ever  held, 
as  are  detailed  in  this  affidavit.  That  he  was  now  before 
an  examining  court,  and  not  before  the  petit  jury;  why, 
then,  the  same  strictness  of  evidence  now  as  would  be 
required  on  the  trial  in  chief?  That  he  really  believed 
it  was  the  intention  of  the  opposite  counsel,  by  dint  of 
long  speeches,  to  attempt  to  drive  him  into  their  course; 
but  that  they  ought  to  know  he  never  consulted  the 
counsel  opposite  to  him  ;  and  that  they  would  be  the 
last  persons  in  the  world  whose  opinions  he  would  con- 
sult on  the  present  occasion.  That  he  seriously  believed 
that  the  evidence  which  he  possessed  would,  beyond 
the  possibility  of  a  doubt,  convince  the  mind  of  the 
court,  not  only  of  the  existence  of  a  traitorous  design, 
but  of  an  overt  act;  and  that  all  that  he  asked,  was  the 
liberty  of  producing  this  evidence  in  the  order  which  he 
thought  best.  Is  no  part  of  this  deposition,  then,  ad- 
missible ?  Not  a  word. 

The  chief  justice  observed  that  he  thought  no  part  of 
it  admissible  at  this  time;  that  General  Wilkinson's 


MOTION    TO    EXCLUDE    EVIDENCE.       73 

affidavit  either  contained  proof  of  the  treasonable  de- 
sign, which  was  no  proof  of  the  overt  act,  or  it  related  to 
conversations,  which,  however  strongly  they  might  bear 
upon  those  who  held  them,  did  not  bear  upon  Mr. 
Burr.1 

Mr.  Hay  asked  how  the  court  was  to  be  satisfied  of 
the  contents  of  any  paper  before  it  was  read  to  them  ? 
An  affidavit  might  contain  both  the  proof  of  the  overt 
act,  and  a  traitorous  design.  Was  such  a  paper  as  this 
to  be  read  under  the  decision  of  the  court?  or  how  was 
the  court  to  know  whether  a  paper  might  not  contain 
some  proof  of  the  overt  act  satisfactory  to  them,  unless 
they  had  an  opportunity  of  inspecting  that  paper  ? 

Mr.  Wickham. — These  gentlemen  talk  of  delay  ;  and 
yet  they  would  produce  to  this  court  whole  masses  of 
evidence  that  are  perfectly  irrevelant  to  the  present 
question.  They  declare  that  they  will  not  pursue  our 
advice  ;  and  that  we  are  the  last  persons  whom  they 
would  take  for  counsellors.  Sir,  we  do  not  ask  them  ; 
all  that  we  want  is,  that  they  would  pursue  the  strict 
principles  of  law  and  legal  evidence.  One  of  the  best 
rules  of  evidence  is  the  order  of  evidence.  If  a  man  is 
charged  with  a  crime,  must  not  the  deed  itself  exist 
before  any  testimony  is  produced  as  to  the  intention 
with  which  it  is  done  ?  I  hope  that  no  testimony  will 
be  suffered  to  be  introduced  before  the  act  itself  shall  be 
produced ;  and  I  call  upon  this  court  to  inforce  the 
strict  order  of  evidence. 

Mr.  Burr  observed  that  in  point  of  fact,  it  was  very 
immaterial  to  him  whether  this  affidavit  was  read  or  not; 
that  what  he  particularly  wanted  was,  that  the  great 
principles  of  evidence  should  be  laid  down,  which  would 
be  equally  applicable  to  this  and  to  all  other  affidavits. 
He  consented  that  the  court  might  have  this  deposition 
read  if  they  thought  proper. 

Mr.  Hay. — This  deposition  will  prove  that  it  was  one 
of  Aaron  Burr's  objects  to  seize  upon  Mexico.  Then,  if 

1  The  chief  justice  observed  in  a  subsequent  stage  of  this  business,  that  an 
idea  had  since  struck  his  mind,  which  he  thought  it  material  to  state  ;  that 
he  had  not  recollected  that  these  conversations  were  said  to  be  held  by  per- 
sons who  were  said  to  be  authorized  by  Mr.  Burr  ;  and  of  course  that  their 
conversations  would  bear  upon  him. 


74  TRIAL     OF    AARON    BURR. 

we  can  have  by  some  other  evidence,  that  this  object 
was  connected  with  an  attack  upon  the  United  States, 
is  not  this  deposition  of  material  importance  in  that 
point  of  view  ?  If  both  must  be  proved,  does  it  make 
any  difference  which  we  begin  with  ?  If  a  conspiracy 
has  been  planned  of  a  misdemeanor  and  of  treason  so 
strongly  combined  that  they  are  made  to  go  on  to- 
gether, and  the  accomplishment  of  the  one  facilitates 
the  accomplishment  of  the  other,  is  it  not  of  material 
consequence  to  prove  the  misdemeanor?  I  have  not 
myself  seen  Mr.  Taylor  or  Mr.  Allbright ;  but  I  am  cre- 
dibly informed  that  they  will  prove  an  armed  assemblage 
of  men  on  Blannerhasset's  island. 

The  chief  justice  observed  that  if  there  was  no  fact  or 
no  overt  act  of  treason  before  the  court,  the  court  could 
have  nothing  to  say  to  the  present  motion ;  that  if 
therefore,  no  fact  was  proved,  the  court  could  not  grant 
the  motion  for  the  prosecution  ;  that  he  should  be  ex- 
tremely sorry  to  waste  the  time  of  the  court,  and  to 
launch  into  a  variety  of  irrelevant  subjects,  when  there 
was  actually  no  testimony  to  prove  the  overt  act  itself, 
and  thus  to  give  the  court  a  competent  jurisdiction  over 
the  case. 

Mr.  Hay. — I  am  bound,  sir,  to  obey  the  decision  of 
the  court.  However  much  I  may  lament  that  decision, 
I  shall  certainly  acquiesce  in  their  order.  If  I  under- 
stand the  court — 

The  chief  justice  said  that  he  was  of  opinion,  that 
unless  there  be  a  fact  to  be  proved,  no  testimony  ought 
to  be  produced.  The  question  before  the  court  was 
not  whether  there  had  been  a  treasonable  intent,  but  an 
overt  act.  That  fact  itself  must  be  proved  before  there 
can  be  any  treason,  or  any  commitment  for  treason. 
General  Wilkinson's  affidavit  was,  accordingly,  put 
aside. 

Mr.  Hay  then  called  Peter  Taylor,  who  was  Mr. 
Blannerhasset's  gardener,  and  Jacob  Allbright,  a  laborer, 
who  had  worked  on  his  island,  who  gave  their  testi- 
mony. [It  is  omitted  here,  because  it  will  be  fully 
detailed  in  a  subsequent  and  more  important  part  of  the 
report.]  After  these  witnesses  had  been  examined,  the 
affidavit  of  Jacob  Dunbaugh  was  offered,  which  was 


OPINION    ON    MOTION.  75 

"taken  on  the  fifteenth,  of  April,  1807,  before  B.  Cenas, 
a  justice  of  the  peace,"  to  which  was  subjoined  a  cer- 
tificate of  Governor  William  C.  C.  Claiborne,  dated  "  at 
New  Orleans,  the  sixteenth  of  April,  1807,"  stating  "that 
B.  Cenas  was  a  justice  of  the  peace  for  the  county  of 
New  Orleans." 

To  the  reading  of  this  affidavit  several  objections  were 
taken  by  the  counsel  for  Mr.  Burr,  but  those  most  relied 
on  were  the  following:  1st.  That  an  affidavit  could, 
under  no  circumstances,  be  read,  unless  it  were  shown 
that  the  witness  could  not  be  produced,  and  that  the  gov- 
ernment had  not  had  sufficient  time  to  procure  the  atten- 
dance of  Jacob  Dunbaugh.  2d.  That  though  the  gov- 
ernor of  New  Orleans  had  certified  that  B.  Cenas  was  a 
justice  of  the  peace,  yet  he  had  not  said  that  it  was  the 
same  B.  Cenas  before  whom  that  affidavit  was  taken. 
3rd.  That  B.  Cenas  had  not  stated  in  the  caption  of  his 
certificate,  or  elsewhere,  that  the  affidavit  was  taken  "  at 
New  Orleans,"  so  as  to  show  that  he  was  acting  within 
his  jurisdiction. 

The  argument  on  these  points  was  continued  to  the 
adjournment  of  the  court,  who  took  time  to  consider  the 
subject  till  the  next  day. 

THURSDAY,  MAY  28,  1807. 

Luther  Martin  appeared  as  the  counsel  of  Mr.  Burr. 

On  the  motion  made  yesterday,  to  exclude  the  evi- 
dence of  Jacob  Dunbaugh,  the  chief  justice  delivered  the 
opinion  of  the  court  as  follows : 

On  the  part  of  the  United  States,  a  paper,  purporting 
to  be  an  affidavit,  has  been  offered  in  evidence,  to  the 
reading  of  which  two  exceptions  are  taken  : 

ist.  That  an  affidavit  ought  not  to  be  admitted,  where 
the  personal  attendance  of  the  witness  could  have  been 
obtained. 

2d.  That  this  paper  is  not  so  authenticated  as  to  en- 
title itself  to  be  considered  as  an  affidavit. 

That  a  magistrate  may  commit  upon  affidavits  has 
been  decided  in  the  supreme  court  of  the  United  States, 
though  not  without  hesitation.  The  presence  of  the 
witness,  to  be  examined  by  the  committing  justice,  con- 


7  6  TRIAL     OF    AARON    BURR. 

fronted  with  the  accused,  is  certainly  to  be  desired  ;  and 
ought  to  be  obtained,  unless  considerable  inconvenience 
and  difficulty  exist  in  procuring  his  attendance.  An  ex 
parte  affidavit,  shaped,  perhaps,  by  the  person  pressing 
the  prosecution,  will  always  be  viewed  with  some  sus- 
picion, and  acted  upon  with  some  caution ;  but  the 
court  thought  it  would  be  going  too  far  to  reject  it 
altogether.  If  it  wa£  obvious  that  the  attendance  of  the 
witness  was  easily  attainable,  but  that  he  was  inten- 
tionally kept  out  of  the  way,  the  question  might  be 
otherwise  decided. 

But  the  particular  case  before  the  court  does  not  ap- 
pear to  be  of  this  description.  The  witness  resides  at  a 
great  distance;  and  there  is  no  evidence  that  the  mate- 
riality of  his  testimony  was  known  to  the  prosecutors  or 
to  the  executive  in  time  to  have  directed  his  attendance. 
It  is  true  that  general  instructions,  which  would  apply  to 
any  individual,  might  have  been  sent,  and  the  attend- 
ance of  this,  or  any  other  material  witness  obtained  un- 
der those  instructions ;  but  it  would  be  requiring  too 
much,  to  say  that  the  omission  to  do  this  ought  to  ex- 
clude an  affidavit.  This  exception,  therefore,  will  not 
prevail. 

The  second  is  that  the  paper  is  not  so  authenticated 
as  to  be  introduced  as  testimony  on  the  question,  which 
concerns  the  liberty  of  a  citizen.  This  objection  is 
founded  on  two  omissions  in  the  certificate. 

The  first  is,  that  the  place  at  which  the  affidavit  was 
taken  does  not  appear. 

The  second,  that  the  certificate  of  the  governor  does 
not  state  the  person  who  administered  the  oath  to  be  a 
magistrate  ;  but  goes  no  farther  than  to  say  that  a  per- 
son of  that  name  was  a  magistrate. 

That  for  aught  appearing  to  the  court,  this  oath  may, 
or  may  not,  in  point  of  fact,  have  been  legally  adminis- 
tered must  be  conceded.  The  place  where  the  oath  was 
administered,  not  having  been  stated,  it  may  have  been 
administered  where  the  magistrate  had  no  jurisdiction, 
and  yet  the  certificate  be  perfectly  true.  Of  consequence, 
there  is  no  evidence  before  the  court  that  the  magis- 
trate had  power  to  administer  the  oath,  and  was  acting 
in  his  judicial  capacity. 


OPINION    ON    MOTION.  77 

/ 

The  effect  of  testimony  may  often  be  doubtful,  and 
courts  must  exercise  their  best  judgment  in  the  case  ; 
but  of  the  verity  of  the  paper  there  ought  never  to  be  a 
doubt.  No  paper  written  ought  to  gain  admittance  into 
a  court  of  justice  as  testimony,  unless  it  possesses  those 
solemnities  which  the  law  requires.  Its  authentication 
must  not  rest  on  probability,  but  must  be  as  complete 
as  the  nature  of  the  case  admits  of;  this  is  believed  to 
be  a  clear  legal  principle.  In  conformity  with  it  is,  as  the 
court  conceives,  the  practice  of  England  and  of  this 
country,  as  is  attested  by  the  books  of  forms  ;  and  no 
case  is  recollected,  in  which  a  contrary  principle  has 
been  recognized.  This  principle  is,  in  some  degree,  il- 
lustrated by  the  doctrine  with  respect  to  all  courts  of 
limited  jurisdiction.  Their  proceedings  are  erroneous 
if  their  jurisdiction  be  not  conclusively  shown.  They 
derive  no  validity  from  the  strongest  probability  that 
they  had  jurisdiction  in  the  case;  none,  certainly,  from 
the  presumption,  that  being  a  court,  an  usurpation  of 
jurisdiction  will  not  be  presumed.  The  reasoning  ap- 
plies in  full  force  to  the  actings  of  a  magistrate,  whose  juris- 
diction is  local.  Thus,  in  the  case  of  a  warrant,  it  is 
expressly  declared  that  the  place  where  it  was  made 
ought  to  appear. 

The  attempt  to  remedy  this  defect,  by  comparing  the 
date  of  the  certificate  given  by  the  magistrate  with  that 
given  by  the  governor,  can  not  succeed.  The  answer 
given  at  bar  to  this  argument,  is  conclusive  ;  the  certifi- 
cate wants  those  circumstances,  which  would  make  it 
testimony ;  and  without  them  no  part  of  it  can  be  re- 
garded. 

The  second  objection  is  equally  fatal.  The  governor 
has  certified  that  a  man  of  the  same  name  with  the  per- 
son who  has  administered  the  oath  is  a  magistrate  ;  but 
not,  that  the  person,  who  has  administered  it,  is  a  magis- 
trate. 

It  is  too  obvious  to  be  controverted  that  there  may  be 
two  or  more  persons  of  the  same  name,  and,  conse- 
quently, to  produce  that  certainty  which  the  case 
readily  admits  of,  the  certificate  of  the  governor  ought  to 
have  applied  to  the  individual  who  administered  the 
oath.  The  propriety  of  this  certainty  and  precision  in 


78  TRIAL     OF    AARON    BURR. 

a  certificate,  which  is  to  authenticate  any  affidavit  to  be 
introduced  into  a  court  of  justice,  is  so  generally  ad- 
mitted that  I  do  not  recollect  a  single  instance  in  which 
the  principle  has  been  departed  from.  It  has  been  said 
that  it  ought  to  appear  that  there  are  two  persons  of  the 
same  name,  or  the  court  will  not  presume  such  to  be  the 
fact.  The  court  presumes  nothing.  It  may  or  may  not 
be  the  fact,  and  the  court  can  not  presume  that  it  is  not. 
The  argument  proceeds  upon  the  idea  that  an  instru- 
ment is  to  be  disproved  by  him  who  objects  to  it,  and 
not  that  it  is  to  be  proved  by  him  who  offers  it.  Noth- 
ing can  be  more  repugnant  to  the  established  usage  of 
courts  How  is  it  to  be  proved  that  there  are  two  per- 
sons of  the  name  of  Cenas  in  the  territory  of  New  Orleans  ? 
If,  with  a  knowledge  of  several  weeks,  perhaps  months, 
that  this  prosecution  was  to  be  carried  on,  the  executive 
ought  not  to  be  required  to  produce  this  witness,  ought 
the  prisoner  to  be  required,  with  the  notice  of  a  few 
hours,  to  prove  that  two  persons  of  the  same  name  reside 
in  New  Orleans? 

It  has  been  repeatedly  urged  that  a  difference  exists 
between  the  strictness  of  law,  which  would  be  applicable 
to  a  trial  in  chief,  and  that  which  is  applicable  to  a 
motion  to  commit  for  trial.  Of  the  reality  of  this  dis- 
tinction, the  present  controversy  affords  conclusive 
proof.  At  a  trial  in  chief,  the  accused  possesses  the  val- 
uable privilege  of  being  confronted  with  his  accuser. 
But  there  must  be  some  limit  to  this  relaxation,  and  it 
appears  not  to  have  extended  so  far  as  to  the  admission 
of  a  paper  not  purporting  to  be  an  affidavit,  and  not 
shown  to  be  one. 

When  it  is  asked  whether  every  man  does  not  believe 
that  this  affidavit  was  really  taken  before  a  magistrate  ? 
it  is  at  once  answered  that  this  can  not  affect  the  case. 
Should  a  man  of  probity  declare  a  certain  fact  within  his 
own  knowledge,  he  would  be  credit ed  by  all  who  knew 
him  ;  but  his  declaration  could  not  be  received  as  testi- 
mony by  the  judge  who  firmly  believed  him.  So  a  man 
might  be  believed  to  be  guilty  of  a  crime,  but  a  jury 
could  not  convict  him,  unless  the  testimony  proved  him 
to  be  guilty  of  it.  This  judicial  disbelief  of. a  probable 
circumstance  does  not  establish  a  wide  interval  between 


OPINION    ON    MOTION.  79 

common  law  and  common  sense.     It  is  believed  in  this 
respect  to  show  their  intimate  union. 

The  argument  goes  to  this,  that  the  paper  ihall  be  re 
ceived  and  acted  upon  as  an  affidavit,  not  because  the  oath 
appears  to  have  been  administered  according  to  law,  but 
because  it  is  probable  that  it  was  so  administered. 

This  point  seems  to  have  been  decided  by  the  consti- 
tution :  "  The  right  of  the  people,"  says  that  instru- 
ment, "  to  be  secure  in  their  persons,  houses,  papers, 
and  effects,  against  unreasonable  searches  and  seizures, 
shall  not  be  violated ;  and  no  warrants  shall  issue  but 
upon  probable  cause,  supported  by  oath  or  affirmation, 
amd  particularly  describing  the  places  to  be  searched, 
and  the  persons  or  things  to  be  seized."  The  cause  ot 
seizure  is  not  to  be  supported  by  a  probable  oath,  or  an 
oath  that  was  probably  taken,  but  by  oath  absolutely 
taken.  This  oath  must  be  a  legal  oath ;  and  if  it  must 
be  a  legal  oath,  it  must  legally  appear  to  the  court  to  be 
so.  This  provision  is  not  made  for  a  final  trial ;  it  is 
made  for  the  very  case  now  under  consideration.  In  the 
cool  and  temperate  moments  of  reflection,  undisturbed 
by  that  whirlwind  of  passion  with  which  in  those  party 
conflicts  which  most  generally  produce  acts  or  accusa- 
tions of  treason,  the  human  judgment  is  sometimes  over- 
thrown, the  people  of  America  have  believed  the  power 
even  of  commitment  to  be  capable  of  too  much  oppres- 
sion in  its  execution,  to  be  placed  without  restriction 
even  in  the  hands  of  the  national  legislature.  Shall  a 
judge  disregard  those  barriers  which  the  nation  has 
deemed  it  proper  to  erect  ? 

The  interest  which  the  people  have  in  this  prosecu- 
tion, has  been  stated  ;  but  it  is  firmly  believed  that  the 
best  and  true  interest  of  the  people  is  to  be  found  in  a 
rigid  adherence  to  those  rules  which  preserve  the  fair- 
ness of  criminal  prosecutions. in  every  stage. 

If  this  was  a  case  to  be  decided  by  principle  alone, 
the  court  would  certainly  not  receive  this  paper  ;  but 
if  the  point  is  settled  by  decision,  it  must  be  conformed 
to. 

It  has  been  said  to  be  settled  in  the  supreme  court  of 
the  United  States  by  admitting  the  affidavit  of  Wilkin- 
son, to  which  an  exception  was  taken,  because  it  did 


So  TRIAL     OF    AARON    BURR. 

not  appear  that  the  magistrate  had  taken  the  oaths  pre- 
scribed by  the  law.  It  was  said  that  as  by  law  he  could 
not  act  until  he  had  taken  the  oaths,  and  he  was  found 
acting,  it  must  be  presumed  that  this  prerequisite  was 
complied  with  ;  that  is,  that  his  acting  as  a  magistrate 
under  his  commission  was  evidence  that  he  was  author- 
ized so  to  act.  It  will  not  be  denied  that  there  is  much 
strength  in  the  argument ;  but  the  cases  do  not  appear 
to  be  precisely  parallel. 

The  certificate  that  he  is  a  magistrate,  and  that  full 
faith  is  due  to  his  acts,  implies  that  he  has  qualified, 
if  his  qualification  is  necessary  to  his  being  a  complete 
magistrate,  whose  acts  are  entitled  to  full  faith  and 
credit. 

It  is  not  usual  for  a  particular  certificate  that  a  magis- 
trate has  qualified,  to  accompany  his  official  acts. 

There  is  no  record  of  his  qualification,  and  no  parti- 
cular testimonial  of  it  could  be  obtained. 

These  observations  do  not  apply  to  the  objections 
which  exist.  But  it  is  said  that  the  certificate  is  the 
same  with  that  in  Wilkinson's  affidavit. 

If  this  objection  had  been,  taken  and  overruled,  it 
would  have  ended  the  question  ;  but  it  was  not  taken, 
so  far  as  is  now  recollected,  and  does  not  appear  to  have 
been  noticed  by  the  court.  It  is  not  recollected  by  the 
judge  who  sat  on  that  occasion  to  have  been  noticed. 
A  defect,  if  it  be  one,  which  was  not  observed,  can  not 
be  cured  by  being  passed  over  in  silence. 

The  case  in  Washington  was  a  civil  case,  and  turned 
upon  the  point,  that  no  form  of  the  commision  was  pre- 
scribed, and  consequently,  that  it  was  not  necessary  to 
appear  on  the  face  of  it  that  it  was  directed  to  magis- 
trates. 

That  it  was  the  duty  of  the  clerk  to  direct  it  to 
magistrates,  and  he  should  not  be  presumed  to  have 
neglected  his  duty,  in  a  case  in  which  his  perf6rmance  of 
it  need  not  appear  on  the  face  of  the  instrument. 

That  the  person  intending  to  take  this  exception, 
ought  to  have  taken  it  sooner,  and  not  surprise  the  op- 
posite party  when  it  was  too  late  to  correct  it. 

But  the  great  difference  is  that  the  privy  examination 
was  a  mere  ministerial  act ;  the  administering  an  oath  is 


MOTION    TO    BIND     OVER.  81 

a  judicial  act.  The  court  is  of  opinion  that  the  paper, 
purporting  to  be  an  affidavit  made  by  Dunbaugh,  can 
not  be  read,  because  it  does  not  appear  to  be  an  oath. 

Mr.  Hay  observed  that  as  the  examination  of  Mr.  Burr 
for  treason  had  already  taken  up  much  time  without  any 
progress  in  the  business,  and,  from  the  disposition  mani- 
fested by  his  counsel,  it  might  last  not  only  ten  days, 
but  even  ten  years  longer,  he  considered  it  his  duty,  from 
information  which  he  had  received  that  morning,  to  sug- 
gest to  the  court  the  propriety  of  binding  Mr.  Burr  in  a 
further  recognizance  from  day  to  day,  till  the  examina- 
tion could  be  ended.  He  stated,  on  the  authority  of  a 
letter  just  come  to  hand  from  the  secretary  at  war,  that 
General  Wilkinson,  with  several  other  witnesses,  might 
be  expected  here  between  the  28th  and  3Oth  of  this 
month.  This  circumstance,  said  he,  renders  it  essential 
that  he  should  be  considered  in  custody,  until  he  gives 
security  that  his  person  shall  be  forthcoming  to  answer 
the  charge  of  treason  against  the  United  States.  The 
gentlemen  who  appear  as  counsel  for  Mr.  Burr,  may  be, 
and  no  doubt  are,  sincere  in  the  opinion  they  have  ex- 
pressed, and  that  he  will  not  shrink  from  the  charges 
exhibited  against  him,  and  will  not  in  any  conjuncture 
of  circumstances  which  may  occur,  fly  from  a  trial ;  but 
those  gentlemen  must  pardon  me  for  saying  that  I  enter- 
tain a  very  different  opinion.  I  must  believe  that  his 
regard  for  the  safety  of  his  own  life,  would,  if  he  perceived 
it  in  danger,  prevail  over  his  regard  for  the  interest  of 
his  securities.  I  give  notice,  therefore,  that  I  consider 
him  as  being  already  in  custody  to  answer  the  motion  I 
.have  made  for  his  commitment,  and  that  he  can  not  be 
permitted  to  go  at  large  without  giving  security  for  his 
appearance  from  day  to  day.  His  situation  now  is  the 
same  as  that  when  he  was  first  apprehended  and  brought 
before  a  single  judge  for  the  purpose  of  examination. 
Your  honor  at  that  time  considered  him  as  in  custody, 
and  bound  him  over  from  day  to  day;  and  I  only  con- 
tend that  the  same  course  should  be  pursued  at  this 
time. 

Mr.  WickJtam. — The  gentleman  thinks  he  has  obtained 
the  effect  of  his  motion,  merely  by  having  made  it.  I 
can  not  oerceive  the  propriety  of  a  motion  to  compel  Mr. 


82  TRIAL     OF    AARON    BURR. 

Burr  to  give  bail  in  any  sum,  before  the  probable  cause 
to  believe  him  guilty  of  treason  has  been  shown.  When 
he  was  brought  before  your  honor  for  examination,  you 
conceived  the  sum  of  five  thousand  dollars  sufficient  secur- 
ity for  his  daily  appearance.  But  a  recognizance  has  al- 
ready been  given  in  double  that  sum,  binding  him  not  to 
depart  without  the  leave  of  this  court.  Yet  now,  although 
no  probable  proof  of  treason  has  been  exhibited,  Mr. 
Hay  requires  the  court  to  demand  of  Mr.  Burr  additional 
security.  I  trust  that  such  a  motion  will  not  prevail. 

Mr.  Martin. — It  has  been  already  decided,  by  the 
supreme  court  of  the  United  States,  that  not  a  single  ex- 
pression in  Wilkinson's  affidavit  amounts  to  any  proof 
of  the  charge  of  treason.  The  motion  of  the  gentleman 
amounts  to  this :  "  We  have  no  evidence  of  treason,  and 
are  not  ready  to  go  to  trial  for  the  purpose  of  proving  it ; 
we  therefore  move  the  court  to  increase  the  bail." 

Mr.  Randolph. — The  first  motion  of  the  counsel  for  the 
United  States  was  to  commit  Mr.  Burr  on  the  ground  of 
probable  cause  only.  This  goes  a  step  farther,  and 
wishes  the  same  thing  to  be  done  on  the  ground  of  a 
probable  cause ;  but  we  trust  that  we  shall  not  be  de- 
prived of  our  liberty,  or  held  to  bail  on  a  mere  uncertain 
expectation  of  evidence. 

Mr.  Mac  Rae. — The  gentlemen  seems  to  consider  the 
recognizance  already  taken  as  sufficient  for  all  circum- 
stances, and  that  Mr.  Burr  will  comply  with  it  at  any 
rate ;  but  we  have  not  the  same  expectation  that  he  will 
appear,  in  case  he  discovers  that  sufficient  evidence  for 
his  conviction  has  been  obtained.  When  they  speak  of 
the  sum  in  which  he  was  bound  on  a  former  occasion, 
they  do  not  recollect  the  circumstances  which  induced 
the  judge  to  take  bail  in  so  small  a  sum  ;  it  was  ex- 
pressly mentioned  by  your  honor,  that  his  having  been 
brought  to  a  place  at  a  distance  from  the  circle  of  his 
friends,  and  the  nature  of  the  offense  (a  misdemeanor 
only)  induced  you  to  hold  him  to  bail  in  that  sum ;  and 
the  charge  of  treason  was  altogether  excluded  from  view 
in  taking  the  recognizance. 

Mr.  Wirt. — Mi.  Wickham,  in  saying  that  my  friend 
Mr.  Hay  thought  he  had  obtained  the  object  of  his 
motion  merely  by  having  made  it,  clearly  misconceived 


MOTION    TO    BIND     OVER.  83 

the  object  of  the  motion  now  before  the  court.  The 
motion  we  made  yesterday  was  to  commit  Mr.  Burr  on 
a  charge  of  treason  ;  our  motion  to-day  is  to  hold  him 
in  custody  to  abide  the  opinion  which  the  court  may 
pronounce  upon  the  question  of  commitment.  The 
gentlemen  say  that  we  have  secured  the  object  we  have 
in  view  by  the  recognizance  already  taken.  The  court 
expressly  excluded  the  charge  of  treason  from  that 
recognizance,  which  applies  only  to  the  misdemeanor. 
Let  us  suppose  that  the  motion  to  commit  Mr.  Burr 
was  made  out  of  court  before  a  single  magistrate ;  if 
the  examination  of  witnesses  in  support  of  the  motion 
occupied  more  than  one  day,  would  the  magistrate  let 
him  go  at  large  while  it  was  depending  ?  Would  he  not 
rather  either  have  him  retained  in  custody,  or  take  secu- 
rity for  his  appearance,  and  renew  it  every  evening  until 
the  motion  should  be  determined  ?  This  is  all  that  we  ask 
of  the  court  to  do.  The  recognizance  which  has  been 
given  applies  to  the  misdemeanor  only.  If  therefore  it 
should  be  forfeited  by  his  going  away,  we  should  have 
had  no  security  for  his  answering  the  charge  of  treason  ;  a 
much  more  enormous  offense,  and  attended  with  a  very 
different  punishment.  We  contend  therefore  that  ad- 
ditional security  ought  to  be  taken. 

Mr.  Botts. — I  shall  endeavor  to  place  this  subject  in 
some  measure  in  a  new  light.  It  has  been  said  that  the 
former  examination  of  Mr.  Burr  did  not  preclude  this 
motion  ;  if  so,  every  new  edition  of  the  volume  of  evi- 
dence would  justify  a  renewal  of  the  motion  to  demand 
additional  bail.  Thus  motions  might  be  heaped  upon 
motions,  and  bail  upon  bail,  until  the  perpetual  im- 
prisonment of  the  accused  might  be  the  consequence. 

It  was  a  practice  in  former  times,  to  drown  a  person 
accused  of  being  a  witch  in  order  to  try  her.  I  think 
that  practice  is  renewed  on  the  present  occasion,  in 
another  shape ;  a  motion  is  made  to  commit  Mr.  Burr 
for  treason,  before  the  evidence  can  be  gone  through  by 
which  alone  it  can  be  ascertained  that  he  ought  to  be 
committed.  The  court  are  requested  to  predetermine 
the  effect  of  the  evidence,  and  commit,  before  they  have 
decided  whether  they  ought  to  commit:  besides,  no 
warrant  has  been  issued  against  Mr.  Burr  on  the  present 


84  TRIAL     OF    AARON    BURR, 

occasion  ;  he  has  not  been  arrested  for  treason,  and 
therefore  can  not  be  considered  as  in  custody  for  that 
offense. 

Mr.  Hay  then  made  some  further  observations  on  the 
importance  of  the  charge  of  treason  (which  is  of  the 
highest  nature,  involving  the  reputation  and  life  of  the 
prisoner),  and  the  great  necessity  therefore  of  the  most 
ample  security  to  compel  his  appearance  to  answer  it. 
He  stated  that  this  examination  might  last  many  days  ; 
that  after  the  court  had  made  up  an  opinion  that  Mr. 
Burr  ought  to  be  committed,  he  might  march  off  and 
leave  the  court  to  pronounce  it ;  so  that  an  order  to 
commit  might  be  made  by  the  court,  and  no  person 
found  on  whom  it  could  be  executed.  Such  an  event, 
he  said,  would  excite  the  laughter  and  scorn  of  all  the 
people  of  the  United  States.  He  mentioned  that  an 
immense  expense  had  been  incurred  by  the  government 
in  collecting  witnesses  and  preparing  for  this  trial  ;  that 
therefore  he  did  not  wish  the  whole  of  that  expense  to 
be  thrown  away.  General  Wilkinson  is  expected  to 
arrive  between  the  28th  and  3Oth  of  this  month :  if  he 
arrives,  both  bills  of  indictment  will  be  immediately  sent 
to  the  grand  jury.  This  is  the  first  instance  in  which 
the  ministers  of  the  law  have  been  requested  to  say  to 
the  accused,  "You  may  do  as  you  please,  and  go  at 
large  until  we  pronounce  sentence."  The  gentlemen 
contend  for  new  principles  in  favor  of  Mr.  Burr ;  but  I 
trust  that  greater  privileges  will  not  be  granted  to  him 
than  to  the  humblest  deluded  victim  of  his  ambition. 
The  circumstance  that  he  has  already  entered  into  a 
recognizance  to  answer  for  a  misdemeanor,  is  no  argu- 
ment to  exempt  him  from  entering  into  another  on  a 
charge  of  treason.  Shall  the  accused  clear  himself  of  a 
responsibility  for  one  crime  by  his  having  committed  or 
being  charged  with  another?  This  would  indeed  be  to 
violate  that  maxim  of  law,  that  no  man  shall  be  bene- 
fited by  his  own  wrong.  Mr.  Botts  has  contended  that 
there  is  a  difference  between  the  case  on  examination 
and  that  now  before  the  court ;  that  in  the  first  instance 
a  warrant  had  been  issued,  but  none  in  the  present  ;  but 
a  warrant  is  certainly  unnecessary,  now  that  the  prisoner 
is  before  the  court.  The  object  of  a  warrant  is  to  bring 


OPINION    ON    THE    MOTION.  85 

\  • 

him  before  you.  When  this  has  been  done,  it  \sfunctus 
officio ;  here  is  Mr. -Burr  before  the  court.  It  is  there- 
fore immaterial  how  he  came  before  it;  but  he  ought 
to  be  considered  in  custody  until  discharged  by  the  due 
course  of  law. 

The  chief  justice  delivered  the  opinion  of  the  court, 
the  substance  of  which  was  as  follows  :  It  is  certainly 
necessary  that  a  person  accused  should  be  retained  in 
custody,  or  required  to  give  security  for  his  appearance 
while  his  examination  is  depending.  The  amount  of  the 
security  to  be  required  must  depend,  however,  upon  the 
weight  of  the  testimony  against  him.  On  a  former 
occasion  Mr.  Burr  was  held  to  bail  for  his  daily  appear- 
ance in  the  sum  of  five  thousand  dollars  only,  because 
there  was  no  evidence  before  the  judge  to  prove  the  pro- 
bability of  his  having  been  guilty  of  treason.  When  the 
examination  was  completed,  the  sum  of  ten  thousand 
dollars  was  considered  sufficient  to  bind  him  to  answer 
the  charge  of  a  misdemeanor  only,  because  the  constitu- 
tion requires  that  excessive  bail  should  not  be  taken  ; 
but  that  recognizance  had  no  application  to  the  charge 
of  treason.  Yet,  whether  additional  security  ought  to 
be  required  in  the  present  stage  of  this  business,  before 
any  evidence  has  appeared  to  make  the  charge  of  treason 
probable,  is  a  question  of  some  difficulty.  It  woultl 
seem  that  evidence  sufficient  to  furnish  probable  cause 
must  first  be  examined  before  the  accused  can  be 
deprived  of  his  liberty,  or  any  security  can  be  required 
of  him.  Yet,  before  this  could  be  done,  he  might  escape 
and  defeat  the  very  end  of  the  examination.  .  In  com- 
mon cases,  where  a  person  charged  with  a  crime  is 
arrested  and  brought  before  a  magistrate,  the  arrest 
itself  is  preceded  by  an  affidavit  which  furnishes 
grounds  of  probable  cause.  The  prisoner  therefore  is 
continued  in  custody,  or  bailed  until  the  examination  is 
finished  :  but  here  there  has  been  no  arrest  for  treason, 
and  Mr.  Burr  is  not  in  custody  for  that  offense.  The 
evidence  then  must  be  heard  to  determine  whether  he 
ought  to  be  taken  into  custody ;  but  as  the  present  pub- 
lic and  solemn  examination  is  very  different  from  that 
before  a  single  magistrate  ;  as  very  improper  effects  on 
|-he  public  mind  may  be  produced  by  it  ;  I  wish  that  the 


86  TRIAL     OF    AARON    BURR. 

court  could  be  relieved  from  the  embarrassing  situation 
in  which  it  is  placed,  and  exempted  from  the  necessity  of 
giving  any  opinion  upon  the  case  previously  to  its  being 
acted  upon  by  the  grand  jury.  It  is  the  wish  of  the 
court  that  the  personal  appearance  of.Mr.  Burr  could  be 
secured  without  the  necessity  of  proceeding  in  this  in- 
quiry. 

Mr.  Burr  rose,  and  observed  that  he  denied  the 
right  of  the  court  to  hold  hhn  to  bail  in  this  stage  of  the 
proceedings;  that  the  constitution  of  the  United  States 
was  against  it ;  declaring  that  no  person  shall  be  ar- 
rested without  probable  cause  made  out  by  oath  or  af- 
firmation. But  if  the  court  were  embarrassed,  he  would 
relieve  them  by  consenting  to  give  bail ;  provided  it 
should  be  understood  that  no  opinion  on  the  question 
even  of  probable  cause  was  pronounced  by  the  court, 
the  circumstance  of  his  giving  bail. 

The  chief  justice  said  that  such  was  the  meaning  of 
the  court. 

Mr.  Martin  said,  for  his  part,  he  should  prefer  that  all 
the  evidence  should  be  fully  gone  into.  Instead  of  fear- 
ing that  public  prejudice  would  thereby  be  excited 
against  Mr.  Burr,  he  believed  it  would  remove  all  the 
prejudices  of  that  sort  which  now  prevailed. 
.  The  Chief  Justice: — As  a  bill  will  probably  be  sent  up 
to  the  grand  jury,  the  court  wished  to  declare  no  opinion 
either  way. 

Some  conversation  then  occurred  relative  to  the  quan- 
tum of  bail ;  and  Mr.  Burr  mentioned  that  he  would 
propose  that  the  sum  should  be  ten  thousand  dollars,  if 
he  should  be  able  to  find  security  to  that  amount,  of 
which  he  expressed  himself  to  be  doubtful.  Mr.  Hay 
contended  that  fifty  thousand  dollars  would  not  be  too 
much.  But  the  court  finally  accepted  the  offer  made  by 
Mr.  Burr ;  who  after  a  short  interval,  entered  into  a  re- 
cognizance with  four  securities,  to  wit,  Messrs.  Wm. 
Langburn,  Thomas  Taylor,  John  G.  Gamble,  and  Luther 
Martin  ;  himself  in  the  sum  of  ten  thousand  dollars,  and 
each  security  in  the  sum  of  two  thousand  five  hundred 
dollars,  conditioned  that  he  would  not  depart  without 
leave  of  the  court. 


MOTION    TO    ADJOURN.  87 

MONDAY,  JUNE  i,  1807. 

The  grand  jury  having  been  called  over,  Mr.  Hay  ob- 
served tjiat  he  felt  great  embarrassment  and  difficulty  as 
to  the  course  which  ought -to  be  pursued  ;  he  had  con- 
fidently expected  the  arrival  of  General  Wilkinson,  and 
was  disappointed.  He  was,  therefore,  unwilling  to  sub- 
ject the  grand  jury  to  the  inconvenience  of  further 
attendance ;  but  he  thought  it  proper  to  inform  the 
court  that  he  had  this  morning  received  a  number  of 
affidavits  of  witnesses,  residing  in  the  neighborhood  of 
Chillicothe,  and  of  Blannerhasset's  island,  which  bore 
directly  upon  the  charge  of  treason  against  Mr.  Burr. 
Those  affidavits,  however,  had  been  taken  in  such  a  man- 
ner, that  according  to  the  opinion  lately  given  by  the 
court,  concerning  the  affidavit  of  Jacob  Dunbaugh,  they 
were  not  admissible  as  evidence,  and  would  not  be  per- 
mitted to  be  read.  He  expected  to  hear  from  General 
Wilkinson  (if  he  should  not  appear  in  person)  by  the 
Lynchburgh  mail,  which  he  understood  would  arrive  on 
Wednesday  morning.  He,  therefore,  hoped  that  the 
grand  jury  would  not  be  unwilling  to  make  a  further 
sacrifice  of  a  portion  of  their  time  for  the  public  good, 
and  would  consent  to  wait  with  patience. 

WEDNESDAY,  JUNE  3,  1807. 

The  names  of  the  grand  jury  being  called  over,  they 
retired  to  their  chamber.  A  few  minutes  after,  the  at- 
torney for  the  United  States  entered,  and  observed  that 
he  had  a  proposition  to  submit  to  the  court,  which  he 
wished  the  grand  jury  to  hear.  He  requested,  therefore, 
that  they  might  be  called  in. 

The  chief  justice  directed  the  marshal  to  call  the  jury 
into  court. 

Some  minutes  intervened  before  they  appeared.  In 
the  mean  time,  Mr.  Hay  informed  the  court  that  he 
only  wished  to  know  from  the  grand  jury,  at  what  time 
it  would  be  most  convenient  for  them  to  attend  the 
court,  if  they  were  adjourned  to  some  distant  day,  should 
such  an  adjournment  equally  suit  the  arrangements  of 
the  opposite  counsel ;  that  he  had  just  made  a  calcula- 


88  TRIAL     OF    AARON    BURR. 

tion  with  his  friend  the  marshal,  which  satisfied  him  that 
General  Wilkinson  had  not,  perhaps,  sufficient  time  to 
reach  this  city.  The  distance  from  New  Orleans,  on  the 
map,  was  about  1,370  miles;  if  he  came  by  land,  he  must 
travel  on  horseback ;  but  judging  him  by  himself,  he 
could  not  probably  ride  more  than  thirty  miles  per  day  ; 
by  these  data  he  would  require  about  forty-five  days 
(besides  a  fragment  of  a  few  miles)  to  travel  from  New 
Orleans  to  this  city.  This  calculation  would  bring  him 
to  the  I4th  or  I5th  of  this  month.  He  was,  therefore, 
willing,  if  it  suited  the  wishes  of  the  opposite  counsel,  to 
have  the  grand  jury  adjourned  for  about  ten  days;  that 
General  Wilkinson's  situation  called  upon  the  court  to 
make  this  arrangement ;  he  need  not  expatiate  upon  the 
importance  of  his  official  duties,  nor  the  perilous  con- 
dition of  that  part  of  the  country,  where  the  head  of  an 
army  ought  always  to  be  present ;  that  General  Wilkin- 
son should  be  detained  here  as  short  a  time  as  possible ; 
and,  that  it  would  be  particularly  inconvenient  for  him 
to  stay  here  until  the  meeting  of  an  intermediate  court 
for  the  present  trial ;  that  it  was,  therefore,  the  interest 
of  the  United  States  to  have  the  trial  concluded  during 
the  present  term ;  and,  that  he  had  no  doubt  the  very 
same  considerations  would  lead  every  member  of  the 
grand  jury  cheerfully  to  submit  to  any  private  incon- 
venience which  they  might  sustain,  but  punctually  to  re- 
turn at  the  time  appointed  by  the  court. 

The  chief  justice  observed  that  there  could  be  no  dif- 
ficulty on  the  part  of  the  court. 

Mr.  Hay. — General  Wilkinson's  situation,  as  a  com- 
mander-in-chief  of  the  forces  of  the  United  States,  is  a 
very  delicate  one.  His  -official  duties  may  require  him 
to  return  immediately  after  his  arrival  at  this  place. 
Our  affairs  in  that  part  of  the  union  are  also  in  a  very 
unsettled  state.  If  he  should  be  compelled  to  return 
after  the  adjournment  of  the  court,  it  may  not  be  in  his 
power  to  be  here  either  at  a  special  court,  or  at  the  next 
term.  He  hoped  that  the  proposition  to  adjourn  the 
grand  jury  to  a  distant  day  would  meet  with  the  approba- 
tion of  Mr.  Burr  and  his  counsel. 

Mr.  Wick  ham  owned  that  this  communication  some- 
what surprised  him,  as  Mr.  Hay  had,  but  a  few  days 


MOTION    TO     ADJOURN.  89 

before,  announced  to  the  court,  from  a  letter  of  the 
secretary  of  war  that  General  Wilkinson  would  be  here 
between  the  28th  and  3Oth  of  May. 

Mr.  Hay  observed  that  the  letter  from  General  Dearborn 
admitted  of  an  easy  explanation;  that  according  to  Mr. 
Minnikin's  affidavit,  the  express  could  not  have  reached 
New  Orleans  before  the  3d  or  4th  of  May,  and  that  this 
exceeded  the  time  which  General  Dearborn  had  allowed. 
His  opinion  was  founded  on  the  circumstance  of  the 
messenger  leaving  Washington  on  a  certain  day,  and  of 
course  his  reaching  New  Orleans  on  a  certain  day.  That 
Mr.  Minnikin's  affidavit  had  shown  the  calculation  to  be 
not  altogether,  correct ;  that  Mr.  Minnikin  had,  therefore, 
given  him  some  information,  which  General  Dearborn 
could  not  have  possessed.  Mr.  Hay  was  sorry  he  could 
not  inform  the  court  how  General  Wilkinson  traveled, 
and  of  course  how  to  make  any  calculation  about  the 
time  of  his  arrival. 

The  chief  justice  said  that  before  the  grand  jury  came 
in,  he  could  not  but  express  his  regret  at  the  great  in- 
convenience which  they  were  likely  to  sustain  ;  but  he 
believed  that  less  of  it  would  arise  from  the  course 
pointed  out  by  the  United  States'  attorney  than  from 
any  other.  The  court  would  continue  to  sit  as  usual ; 
its  ordinary  business  would  go  on  ;  and  no  further  steps 
would  be  taken  in  the  prosecution,  until  the  return  of 
the  grand  jury.  The  court  would  observe  that  it  seemed 
desirable,  in  every  point .  of  view,  that  this  business 
should  be  closed  during  the  present  term  ;  that  a  number 
of  witnesses  were  now  present,  all  of  whom  would  not 
probably  attend  at  any  other  term,  and  that  it  would  be 
more  convenient  for  the  court  itself  to  wait  a  fortnight 
longer  after  its  usual  period  of  adjournment,  than  to 
hold  an  intermediate  court  for  this  purpose. 

Mr.  Wick  ham  had  no  doubt  himself,  that  if  General  Wil- 
kinson had  intended  to  have  come  at  all,  he  would  have 
been  here  before  this  time ;  certainly  the  government 
had  not  failed  in  its  duty  in  taking  every  necessary 
measure  to  have  him  here.  If  the  grand  jury  was  ad- 
journed to  some  distant  day,  the  great  difficulty  would 
be  to  collect  them  all  again  at  the  end  of  the  time  ap- 
pointed ;  and  that  if  General  Wilkinson  was  to  come  at  all, 


9o  TRIAL     OF    AARON    BURR. 

he  may  be  expected  here  every  day  ;  and  that  of  course 
it  was  better  to  adjourn  the  grand  jury  only  from  day  to 
day. 

Mr.  Hay  stated  that  a  large  allowance  ought  to  be 
made  for  the  distance  and  uncertainty  of  the  journey  ; 
and  that  he  should  remind  the  court  of  a  corresponding 
fact.  Mr.  Perkins,  who  escorted  Mr.  Burr,  left  Fort 
Stoddert  about  the  23d  or  24th  of  March ;  but  he  him- 
self did  not  reach  this  city  before  the  thirty-third  or 
thirty-sixth  day.  Now,  Mr.  Perkins  certainly  traveled 
with  greater  advantages  then  General  Wilkinson  would  ; 
as  he  pressed  or  purchased  horses  to  expedite  his  jour- 
ney. Admit,  then,  Mr.  Perkins  used  due  diligence  (and 
he  has  been  even  charged  with  too  much),  how  can  Gen- 
eral Wilkinson  be  certainly  expected  ?  Gentlemen 
ought  not  to  be  so  confident  in  their  hopes.  General 
Wilkinson  will  be  here  as  sure  as  he  is  a  living  man. 
Nothing  but  death  will  prevent  him. 

The  chief  justice  observed  that  a  large  calculation 
ought  certainly  to  be  made,  as  the  distance  was  very 
considerable,  and  it  was  very  uncertain  when  General 
Wilkinson  set  out,  or  how  he  traveled. 

At  this  moment  the  grand  jury  returned  into  court. 

Mr.  Hay  addressed  them  in  the  following  terms  : 

Gentlemen  of  the  Grand  Jury, — I  have  already 
stated  to  the  court  and  the  opposite  counsel,  that  this 
business  should  be  concluded  if  possible  during  your 
present  session.  I  have  moved  the  court  that  you  be 
called  again  at  the  end  of  ten  days  or  a  fortnight.  My 
calculation  is,  that  General  Wilkinson  can  not  be  here 
before  the  I4th  or  i$th  of  this  month.  I  am  sorry  to 
detain  you  here  a  single  moment ;  but  I  flatter  myself 
that  you  will  still  continue  to  display  the  same  praise- 
worthy patience  which  has  hitherto  marked  your  con- 
duct. I  am  therefore  anxious  to  consult  your  own  con- 
venience as  much  as  possible ;  and  I  wish-  to  know  at 
what  time  it  will  be  most  convenient  for  you  to  return 
to  this  place,-  if  you  are  adjourned  to  a  distant  day. 

Mr.  John  Randolph  (the  foreman). — Any  time,  may  it 
please  the  court,  shall  be  most  convenient  to  ourselves, 
that  is  most  convenient  to  the  court  and  the  parties. 
We  should,  however,  prefer  a  distant  day. 


MOTION    TO    ADJOURN.  91 

Mr.  Burr  observed  that  there  were  manifest  incon- 
veniences in  the  measure  proposed.  He  had,  for  in- 
stance, a  number  of  witnesses  here  from  a  distance  ; 
would  it  not  be  inconvenient  for  them  to  be  kept  here  ? 
Certainly,  however,  they  must  be  detained  ;  but,  why  an 
adjournment  to  a  distant  day?  Mr.  Wilkinson  may  be 
expected  here  every  day.  The  attorney's  estimate  of 
the  time  is  not  perhaps  correct.  Perkins  came  about  the 
same  distance  as  Mr.  Wilkinson  is  to  come  ;  but  he  per- 
formed his  journey  in  thirty-one  days.  What  we  want, 
however,  is  some  data  from  the  government  on  this  sub- 
juct ;  such,  for  instance,  as  the  time  when  the  express 
left  Washington.  As  to  Minnikin's  affidavit,  what 
great  reliance  can  be  placed  in  it  ?  Did  he  certainly 
identify  the  express?  But  suppose  that  the  express 
reached  New  Orleans  about  the  time  mentioned  ;  Mr. 
Wilkinson  may  come  by  water,  and  is  to  be  expected 
here  every  day.  Mr.  Burr  hoped  that  this  measure 
would  not  be  adopted  ;  particularly  as  it  was  uncertain 
whether  eight  or  ten  days  hence  all  of  the  grand  jury 
would  meet  here  again.  Mr.  Wilkinson  may  be  near  to 
this  place  at  this  moment;  and  he  may  arrive  almost 
immediately  after  the  jury  is  adjourned.  Adjourn  them 
from  day  to  day.  According  to  Mr.  Dearborn's  letter,' 
Mr.  Wilkinson  ought  to  have  been  here  between  the 
28th  and  3Oth  of  May  ;  allowing,  however,  six,' days  more 
than  he  said,  Mr.  Wilkinson  may  be  expected  here  to- 
morrow. 

Mr.  Hay  observed  that  it  was  of  no  sort  of  importance 
to  him,  personally  or  officially,  to  what  time  the  grand 
jury  was  adjourned;  all  that  he  wished  was,  that  the 
public  business  should  go  on,  and  this  prosecution  closed 
during  the  present  court.  Whether  General  Wilkinson 
would  be  here  to-morrow,  or  a  fortnight  hence,  he  knew 
not ;  he  merely  made  the  present  proposition  for  the 
accommodation  of  the  grand  jury.  If  gentlemen  on  the 
other  side  choose  to  object  to  it,  and  the  court  would 
adjourn  the  jury  from  day  to  day,  he  was  satisfied.  He 
had  in  the  early  part  of  April,  received  a  letter  from  Mr. 
Rodney,  stating  that  every  exertion  would  be  made  to 
have  him  here :  it  was  not  probable  that  the  messenger 
could  have  arrived  in  New  Orleans  before  the  3d  or  4th 


92  TRIAL     OF    AARON    BURR. 

of  May.  If  General  Wilkinson  traveled  by  land,  he  would 
not  come  so  expeditiously  as  Mr.  Perkins,  because  Mr. 
Perkins  had  exhausted  the  frontier  parts  of  Georgia  of 
its  horses.  Such,  at  least,  was  Mr.  Minnikin's  represen- 
tation. f 

Mr.  Martin  submitted  to  the  court,  whether  it  was  not 
better  to  adjourn  the  jury  from  day  to  day.  Any  calcu- 
lation on  such  a  subject  was  uncertain  ;  it  was  uncertain 
whether  General  Wilkinson  would  travel  by  land  or  by 
water;  but  if  he  came  by  land,  he  might  certainly  travel 
further  than  the  gentleman  had  allowed — thirty  miles 
a  day  ;  nor  would  he  be  obliged  to  use  the  same  horse, 
as  that  gentleman  had  also  supposed.  As  General 
Wilkinson  was  a  military  gentleman,  he  would  not  be 
confined  to  thirty  miles  a  day;  nor  might  he  deny  him- 
self the  convenience  of  frequent  relays  of  horses.  And 
suppose  he  should  arrive  here  to-morrow,  all  the  other 
important  witnesses  are  present,  and  the  business  might 
be  concluded  before  the  time  should  come  to  which  the 
grand  jury  may  be  'adjourned.  He  hoped,  therefore, 
that  the  court  would  not  adjourn  them  to  a  distant  day. 
As  to  himself,  he  said,  he  did  not  wish  his  own  situation 
to  enter  into  the  consideration  of  the  grand  jury,  or  the 
court ;  that  certainly  he  ought  to  be  on  the  Eastern 
Shore,  on — ,  to  attend  the  court;  but  that  notwith- 
standing this  circumstance,  he  was  determined  to  stay 
here,  so  long  as  he  could  expect  to  do  any  service  to  the 
gentleman  whom  he  had  come  to  defend. 

Mr.  Wickham  stated  that  if  General  Wilkinson  did  not 
even,  arrive  here  in  two  or  three  days,  intelligence  at  least 
might  be  obtained  within  that  time  of  the  period  of  his 
arrival.  Every  post  from  the  north  or  south  might 
bring  the  information  ;  every  person  that  came  by  land 
or  water  might  do  so  ;  under  such  circumstances,  ought 
they  to  be  adjourned  for  ten  days,  or  a  fortnight  ? 

The  chief  justice  said  that  he  was  fully  impressed  with 
the  patience  which  the  grand  jury  had  manifested  ;  per- 
haps Monday  next  would  be  as  convenient  for  them  as 
any  other  day,  to  reassemble. 

Mr.  Wickham  expressed  his  opposition  to  their  ad- 
journment ;  for  although  the  jury  had  hitherto  exhibited 
so  much  patience,  yet  if  they  retired  home,  some  one 


ADJOURNMENT.  93 

might  find  his  domestic  affairs  in  such  situation  as  to 
think  himself  excused  from  further  attendance. 

CJiief  Justice. — Gentlemen  of  the  grand  jury,  you  will 
attend  here  on  Tuesday  next,  at  two  o'clock. 

TUESDAY,  JUNE  9,  1807. 

Mr.  Hay  observed  that  it  was  proper  for  him  to  inform 
the  court  that  he  had  received  no  further  information 
respecting  General  Wilkinson,  except  what  was  con- 
tained in  a  Norfolk  paper  (The  Public  Ledger)  received  by 
the  mail  of  this  morning;  a  paragraph  of  which  stated 
that  a  vessel  had  arrived  there  in  twenty-seven  days 
from  New  Orleans,  and  that  at  the  departure  of  the 
vessel  from  the  latter  place,  which  must  have  been 
about  the  nth  of  last  month,  General  Wilkinson  was 
still  in  New  Orleans ;  and  nothing  was  said  as  to  his  in- 
tention of  leaving  it.  He  said  that  he  had  confidently 
expected  General  Wilkinson  here  before  this  time  ;  but 
that  he  might  have  been  led  into  the  mistake  by  the 
information  of  Mr.  Minnikin,  as  to  the  progress  which 
the  express  had  made,  when  he  saw  the  messenger  on 
his  way  to  New  Orleans.  It  was 'possible  that  in  the 
latter  part  of  his  journey,  he  might  not  have  been  able  to 
move  with  as  much  rapidity  as  upon  his  first  setting  out ; 
but  from  a  knowledge  of  the  fact  that  General  Wilkinson 
was  at  New  Orleans* at  that  time,  his  hopes  were  much 
stronger  that  he  would  certainly  be  here.  The  express 
would  go  directly  to  him,  and  he  would  have  nothing  to 
do  but  to  prepare  for  his  journey  to  this  place ;  he 
wished  the  subject  might  be  postponed  fora  few  days.  For 
the  sake  of  economy,  for  the  sake  of  that  justice  which 
is  due  to  the  public  and  to  the  accused,  he  hoped  that 
no  objection  would  be  made  to  this  course.  Almost  all 
the  witnesses  were  here  ;  that  he  was  sorry  to  be  forced 
to  make  so  many  apologies  to  the  grand  jury,  who  had 
already  manifested  so  much  patience  ;  but  he  begged 
them  to  recollect  the  extreme  importance  of  the  present 
trial,  and  that  it  would,  perhaps,  be  the  last  time  that 
they  would  be  placed  in  this  situation. 

Mr.  Burr  hoped  the  jury  would  be  adjourned  for  as 
short  a  time  as  possible  ;  at  all  events  not  longer  than 
Thursday. 


94 


TRIAL     OF    AARON     BURR. 


Chief  Justice,—  This  is  Tuesday;  the  attorney  for  the 
United  States  can  not  probably  expect  General  Wilkin- 
son before  Thursday,  if  he  comes  by  water. 

Mr.  Hay  knew  not  how  he  was  to  come  ;  if  by  water, 
he  certainly  could  not  be  expected  before  that  time ; 
and  if  by  land,  he  would  certainly  require  one  day  to 
recover  from  the  fatigue  of  traveling. 

The  chief  justice  then  observed  to  the  grand  jury  that 
they  were  adjourned  till  Thursday,  ten  o'clock. 

Mr.  Burr  then  addressed  the  court.  There  was  a  prop- 
osition which  he  wished  to  submit  to  them.  In  the 
president's  communication  to  congress,  he  speaks  of  a 
letter  and  other  papers  which  he  had  received  from  Mr. 
Wilkinson,  under  date  of  2ist  of  October.  Circum- 
stances had  now  rendered  it  material  that  the  whole  of 
this  letter  should  be  produced  in  court ;  and  further,  it 
has  already  appeared  to  the  court  in  the  course  of  differ- 
ent examinations,  that  the  government  have  attempted 
to  infer  certain  intentions  on  my  part  from  certain  trans- 
actions. It  becomes  necessary,  therefore,  that  these 
transactions  should  be  accurately  stated.  It  was,  there- 
fore, material  to  show  in  what  circumstances  I  was 
placed  in  the  Mississippi  Territory;  and  of  course,  to  ob- 
tain certain  orders  of  the  army  and  the  navy  which  were 
issued  respecting  me.  I  have  seen  the  order  of  the  navy 
in  print ;  and  one  of  the  officers  of  the  navy  had  assured 
me  that  this  transcript  was  correct.  The  instructions  in 
this  order  were  to  destroy  my  person  and  my  property 
in  descending  the  Mississippi.  Now,  I  wish,  if  possible, 
to  authenticate  this  statement  ;  and  it  was  for  this  pur- 
pose, when  I  passed  through  Washington  lately,  that  I 
addressed  myself  to  Mr.  Robert  Smith.  That  gentle- 
man seemed  to  admit  the  propriety  of  my  application, 
but  objected  to  my  course.  He  informed  me  that  if  I 
would  apply  to  him  through  one  of  my  counsel,  there 
could  be  no  difficulty  in  granting  the  object  of  my  appli- 
cation. I  have  since  applied  in  this  manner  to  Mr. 
Smith,  but  without  success.  Hence  I  feel  it  necessary 
to  resort  to  the  authority  of  this  court,  to  call  upon  them 
to  issue  a  subpoena  to  the  president  of  the  United 
States,  with  a  clause  requiring  him  to  produce  certain 
papers,  or  in  other  words,  to  issue  the  subpoena  duces 


MOTION     TO    PRODUCE    PAPERS.          95 

tecum.  The  attorney  for  the  United  States,  will,  how- 
ever, save  the  time  of  this  court,  if  he  will  consent  to 
produce  the  letter  of  the  2 1st  October,  with  the  accom- 
panying papers,  and  also  authentic  orders  of  the  navy 
and  war  departments. 

Mr.  Randolph  observed  that  he  knew  not  whether  it 
was  necessary  for  him  to  support  Mr.  Burr's  motion  : 
that  he  had  been  informed  by  him  of  his  application 
through  a  friend,  to  Mr.  Smith,  and  of  Mr.  Smith's 
refusing  to  grant  the  application,  unless  it  were  made 
through  one  of  his  counsel ;  that  he  had  himself,  therefore, 
addressed  a  letter  to  Mr.  Smith,  informing  him  of  Mr. 
Burr's  statement.  In  answer  to  this  he  had  received  a 
letter,  which  seemed  like  a  personal  communication  to 
himself;  but  as  he  had  not  requested  him  to  withhold  it 
from  Mr.  Burr,  and  as  it  contained  information  material 
to  him,  he  had  shown  it  to  Mr.  Burr. 

Mr.  Randolph  regretted  that  he  had  not  the  letter 
then  about  him  ;  but  the  substance  of  it  was,  that  the 
order  which  had  been  alluded  to  was  only  for  the  officer 
to  whom  it  had  been  addressed,  and  was  to  be  seen  only 
by  him.  He  added  that  he  had  written  in  reply  to  Mr. 
Smith,  that  he  never  would  have  applied  to  him  for  it, 
but  for  two  reasons,  that  it  had  already  appeared  in  a 
Natchez  Gazette,  and  that  Mr.  Van  Ness,  the  friend  of 
Mr.  Burr,  had  informed  him  of  Mr.  Smith's  uncondi- 
tional promise  to  furnish  the  order,  if  he  were  properly 
applied  to  for  it. 

Mr.  Burr  observed  that  to  avoid  all  possible  miscon- 
ception, he  thought  it  proper  to  state  that  Mr.  Van  Ness 
had  assured  him  of  Mr.  Smith's  positive  and  unqualified 
promise  to  furnish  the  answer,  if  applied  for  through 
counsel. 

Mr.  Hay  declared  that  he  knew  not  for  what  this  in- 
formation could  be  wanted ;  to  what  purpose  such  evi- 
dence could  relate,  and  whether  it  was  to  be  used  on  a 
motion  for  commitment,  or  on  the  trial-in-chief. 

Mr.  Burr,  Mr.  Wickham,  and  Mr.  Martin  observed 
that  perhaps  on  both,  according  as  circumstances  might 
require. 

Mr.  Hay. — I  suppose  this  court  will  not  proceed  but 
upon  facts.  Now,  a  letter  of  the  2 1st  of  October  is 


96  TRIAL     OF    AARON    BURR. 

spoken  of;  but  has  this  letter  been  yet  identified?  He 
hoped  that  the  court  would  not  issue  the  subpcena  duccs 
tecum,  until  they  were  satisfied  that  they  had  the  author- 
ity to  issue  it,  and  that  the  information  required  was 
material  in  the  present  case. 

Mr.  Wickham  observed  that  the  present  was  simply 
intended  as  a  notice  of  a  motion  to  be  brought  before  the 
court ;  which  motion  might  be  discussed  either  to-day 
or  to-morrow. 

Mr.  Hay  declared  that  all  delay  was  unnecessary;  but 
he  pledged  himself,  if  possible,  to  obtain  the  papers 
which  were  wanted ;  and  not  only  those,  but  every  paper 
which  might  be  necessary  to  the  elucidation  of  the  case. 

Chief  justice  observed  that  all  delay  was  obviously 
improper;  that  if  the  papers  were  wanted,  they  ought  to 
be  obtained  as  soon  as  possible,  and  not,  perhaps,  delay 
the  ulterior  stages  of  the  prosecution. 

Mr.  Hay  stated  that  he  had  already  received  a  com- 
munication from  Mr.  Wickham  on  this  subject,  and  in- 
tended to  have  informed  him  that  he  would  write  for  all 
the  papers  which  were  wanted  (and  he  had  no  doubt  he 
should  obtain  them)  if  the  court  judged  them  material. 
The  fact  was  that  he  had  already  in  his  possession  Mr. 
Randolph's  correspondence  with  Mr.  Smith,  and  the 
order  from  the  navy  department ;  but  in  his  own  opinion, 
they  no  more  related  to  the  present  prosecution  than  the 
first  paragraph  of  the  first  page  of  the  acts  of  congress. 

Mr.  Hay  repeated  that  if  the  gentlemen  would  furnish 
him  with  a  list  of  such  papers  as  they  wanted,  he  would 
attempt  to  obtain  them,  if  the  court  thought  them  ma- 
terial. Of  what  use  were  they?  Were  they  too  to  be  laid 
before  the  grand  jury,  to  distract  their  attention,  and  to 
present,  under  another  point  of  view,  another  subject 
for  their  consideration  ?  He  had  supposed,  that  the 
mass  of  matter  to  be  laid  before  them  was  large  enough 
already. 

Chief  justice  observed  that  it  was  impossible  to  deter- 
mine their  use,  without  hearing  them.  He  would  much 
rather  that  the  counsel  on  both  sides  should  make  an 
arrangement  with  each  other  suitable  to  them  both ;  and 
that  the  court  itself  was  not  now  disposed  to  make  any 
arrangement ;  but  if  the  parties  could  not  come  to  any 


MOTION     TO    PRODUCE    PAPERS. 


97 


agreement,  he  should  then  wish  to  hear  some  argument 
on  the  subject  to  satisfy  him  whether  the  court  had  the 
right  to  issue  a  subpoena  duces  tecum. 

Mr.  Burr  observed  that  he  had  been  told  it  was  the 
constant   practice  in   this  state  to   issue  such  subpoenas l 
upon  the  application  of  a  party. 

Chief  justice  had  no  doubt  it  was  the  custom  to  do  it, 
where  there  was  no  great  inconvenience  to  the  party 
summoned  ;  that  it  seldom  occurred ;  but  that  he  was 
inclined  to  think,  where  great  inconveniences  would  result 
to  the  party  summoned,  that  the  materiality  of  his  testi- 
mony should  be  fully  shown.  If  papers  are  to  be  ob- 
tained from  a  clerk's  office,  such  a  subpoena  may  be  issued, 
and  though  not  upon  affidavit,  yet  where  there  has  been 
good  cause  shown. 

Mr.  Martin  said  that  there  would  be  no  inconvenience, 
as  the  president  might  just  transmit  the  papers  wanted 
by  mail. 

Mr.  Hay  observed  that  Mr.  Martin's  remark  super- 
ceded  any  further  proceeding.  Why  apply  to  the  court 
to  issue  a  subpoena  to  the  president,  unless  perhaps  it 
was  the  necessary  form  for  obtaining  the  papers. 

Chief  Justice. — The  reason  is  that  in  case  of  a  refusal 
to  send  the  papers,  the  officer  himself  may  be  present  to 
show  cause.  This  subpoena  is  issued  only  where  fears  of 
this  sort  are  entertained. 

Mr.  Hay  said  that  no  application  had  yet  been  made 
to  the  secretary  of  state,  for  General  Wilkinson's  letter  ; 
nor  to  the  department  of  war,  for  its  order. 

Mr.  Martin. — If  one  department  refuses,  we  may  pre- 
sume that  the  others  will. 

Mr.  Burr. — If  the  gentleman  grants  our  demand,  he 
may  propose  any  alteration  in  its  form  that  he  pleases. 

Mr.  Randolph. — If  any  arrangement  can  be  made  to 
obtain  these  papers,  we  would  rather  that  it  should  be  a 
voluntary  act  on  the  part  of  the  government. 

Mr.  Hay. — I  will  attempt  to  obtain  these  papers ; 
any,  in  fact,  that  gentlemen  may  want,  if  the  court  will, 
but  say  they  are  material. 

Mr.  Wickham. — Mr.  Burr's  counsel  know  little  of  the 
importance  of  these  papers,  but  from  himself ;  and  from 
that,  they  are  fully  persuaded  of  their  great  importance. 
7 


98  TRIAL     OF    AARON    BURR. 

The  attorney  for  the  United  States  says  that  so  far  as 
his  personal  exertions  will  go,  he  will  attempt  to  obtain 
them,  and  firmly  believes  that  his  application  will  be 
successful.  But,  sir,  at  Washington  they  may  entertain 
very  different  views  from  himself.  Under  such  circum- 
stances it  is  better  to  encounter  the  delay  of  three  or 
four  days  to  obtain  the  authority  of  this  court,  than 
trust  to  an  expedient  which  may  be  unavailing.  But  I 
see  no  necessity  for  any  such  delay,  as  the  order  may  at 
once  issue  by  consent  of  parties.  As  to  the  order  from 
the  navy  department,  a  copy  may  be  sufficient  ;  the 
original  is  already  gone  out.  As  to  Wilkinson's  letter, 
we  wish  to  see  itself  here  ;  and  surely  it  may  be  trusted 
in  the  hands  of  the  attorney  for  the  United  States. 

Mr.  Hay. — It  seems,  then,  that  the  copies  of  papers 
from  the  government  of  the  United  States  will  not  be 
received.  They  are  not  to  be  trusted.  After  such  an 
observation,  sir,  I  retract  everything  that  I  have  prom- 
ised ;  let  gentlemen,  sir,  take  their  own  course. 

Mr.  Wickham. — We  wish  to  confront  him  with  his 
own  letter. 

Mr.  Hay. — Perhaps  they  may  not  be  able  to  remove 
the  original,  as  it  is  already  filed  in  the  department  of 
state. 

Mr.  Martin. — We  are  ready  to  go  on  with  the  dis- 
cussion. 

Mr.  Wickham. — The  president's  message  mentioned 
that  this  was  a  letter  to  himself. 

Mr.  Hay. — I  hope  the  court  will  remember  that 
remark.  The  letter  these  gentlemen,  then,  want  is  ad- 
dressed to  Thomas  Jefferson.  Have  they  a  right  to 
demand  any  but  public  letters? 

Mr.  Martin. — The  president's  message  said  it  was 
addressed  to  him  as  president  of  the  United  States. 

Mr.  Hay. — If  it  be  a  public  letter,  it  is  of  course 
deposited  in  the  department  of  state.  I  have  no  objec- 
tion to  repeat  my  promise  to  apply  for  these  papers  if  the 
court  thinks  them  material;  and  when  the  business 
arrives  at  the  proper  stage  they  may  then  be  produced. 
I  hope  that  no  more  time  will  be  wasted  in  these  prelimin- 
ary stages  ;  and  that  such  arrangements  may  be  adopted 
as  will  prevent  this  useless  consumption  of  time. 


MOTION    TO    PRODUCE    PAPERS.  99 

Mr.  Randolph  had  no  reason  to  believe  that  there  had 
been  more  delay  on  his  side  than  on  the  other ;  that  if 
time  was  to  be  consumed  at  all,  more  would  be  em- 
ployed in  removing  greater  difficulties  than  had  already 
been  done;  that  he,  however,  only  hinted  at  this  now. 
He  declared  with  Mr.  Wickham  his  perfect  concurrence 
in  this  measure. 

Mr.  Botts. — We  are  unanimous  on  this  point,  I  am 
sure.  Sir,  I  can  not  sit  down  and  hear  complaints 
so  unnecessarily  repeated  about  the  waste  of  time.  It 
is  time,  sir,  to  be  done  with  them.  It  is  time  that  we 
should  enjoy  something  like  the  liberty  of  speech.  Mr. 
Hay  makes,  I  think,  about  a  dozen  times  as  many 
speeches  as  any  other  gentleman  ;  and  each  speech 
longer  than  those  of  other  persons;  and  yet  we  can  not 
open  our  mouths,  without  his  sounding  loudly  his  com- 
plaints to  the  ears  of  this  hall.  On  this  case  of  unequal 
magnitude,  shall  we  not  be  suffered  to  declare  our  opin- 
ions without  this  unnecessary  complaint  about  the  con- 
sumption of  the  court's  time?  We  feel  the  magnitude 
of  our  duties,  and  we  shall  firmly  discharge  them  in 
spite  of  Mr.  Hay.  It  is  obvious  to  you,  sir,  and  to  every- 
body, that  the  delay  is  not  with  us.  If,  sir,  you  call  for 
an  argument,  we  are  ready  to  proceed :  but  if  you  are 
satisfied,  we  shall  be  silent. 

Chief  Justice. — If  the  attorney  for  the  United  States 
is  satisfied  that  this  court  has  a  right  to  issue  the  sub- 
poena duces  tecnm,  I  will  grant  the  motion. 

Mr.  Hay. — I  am  not,  sir. 

Chief  justice. — I  am  not  prepared  to  give  an  opin- 
ion on  this  point,  and,  therefore,  I  must  call  for  an 
argument. 

Mr.  Hay. — When  I  said  that  there  had  been  a  great 
consumption  of  time,  I  certainly  did  not  mean  to  insin- 
uate that  they  only  consumed  it.  I  have  certainly  had 
my  full  proportion.  I  thought,  however,  that  my  prop- 
osition would  have  saved  some  time  ;  and  I  am  still  will- 
ing to  repeat  my  promise. 

Mr.  Randolph. — That  the  court  may  understand  us,  I 
will  read  to  them  the  form  of  the  subpoena  which  we 
wish  to  obtain.  [Here  Mr.  Randolph  read  the  sketch 
before  him.] 


ioo  TRIAL    OF    AARON    BURR. 

Mr.  Botts. — We  will  be  under  the  direction  of  the 
court,  whether  we  shall  proceed  in  the  argument  to-day 
or  to-morrow. 

Chief  Justice. — Unquestionably  there  must  be  an  ar- 
gument, if  the  attorney  for  the  United  States  disputes 
the  authority  of  the  court  to  grant  the  motion. 

Mr.  Hay. — Whatever  other  gentlemen  may  think  on 
this  subject,  I  have  not  the  least  doubt  that  these  papers 
will  be  produced,  because  Mr.  Robert  Smith  has  volun- 
tarily furnished  me  with  the  order  of  the  navy  depart- 
ment. But  although  I  may  procure  these  papers,  let  it 
be  distinctly  understood,  that  I  shall  object  to  their  being 
unnecessarily  produced. 

Mr.  Botts. — It  will  take  four  days  at  least  to  inter- 
change letters  between  this  city  and  Washington,  and 
two  or  three  days  to  copy  the  papers,  so  that  six  days 
will  be  totally  lost  to  us.  In  the  meantime,  thirty  or 
forty  witnesses,  and  sixteen  grand  jurymen  (they  might, 
perhaps,  require  them)  would  be  detained  here  ;  and  after 
all,  the  attorney's  application  to  the  government  might 
be  unavailing. 

Mr.  Hay. — Since  the  gentlemen,  sir,  will  press  this 
subject,  I  ask  no  more  than  that  they  will  waive  this  dis- 
cussion till  to-morrow. 

The  court  was  then  adjourned  till  to-morrow  eleven 
o'clock. 

WEDNESDAY,  JUNE  10,  1807. 

The  court  met  according  to  adjournment. 

The  subject  of  the  subpcena  duces  tecum  was  resumed. 

The  following  affidavit,  drawn  up  and  sworn  to  by  Mr. 
Burr,  was  read,  in  support  of  the  motion  for  the  subpoena. 

"  Aaron  Burr,  maketh  oath  that  he  hath  great  reason 
to  believe  that  a  letter  from  General  Wilkinson  to  the 
president  of  the  United  States,  dated  2ist  October, 
1806,  as  mentioned  in  the  president's  message  of  the  22d 
January,  1807,  to  both  houses  of  congress,  together  with 
the  document  accompanying  the  said  letter,  and  copy 
of  the  answer  of  said  Thomas  Jefferson,  or  of  any  one 
by  his  authority,  to  the  said  letter,  may  be  material  in 
his  defense,  in  the  prosecution  against  him.  And  fur- 


MOTION     TO    PRODUCE    PAPERS.         101 

ther,  that  he  hath  reason  to  believe,  the  military  and 
naval  orders  given  by  the  president  of  the  United  States, 
-through  the  departments  of  war  and  of  the  navy,  to  the 
officers  of  the  army  and  navy,  at  or  near  the  New 
Orleans  station,  touching  or  concerning  the  said  Burr, 
or  his  property,  will  also  be  material  in  his  defense. 

"AARON  BURR. 

"  Sworn  to  in  open  court,  loth  June,  1807." 
Mr.  Hay  begged  leave  to  give  notice  to  the  court  and 
the  opposite  counsel  that  in  conformity  to  the  informa- 
tion which  he  had  yesterday  given,  he  had  addressed  a 
letter  to  the  president,  stating  the  motion  that  was  to  be 
made  this  day,  and  suggesting  the  propriety  of  sending 
on  the  papers'  required  ;  but  reserving  to  himself  the 
right  of  retaining  them,  till  the  court  saw  them,  and  de- 
termined their  materiality.  He  hoped  to  have  them  in 
his  possession  in  five  days.  He  should,  however,  object 
to  the  affidavit  produced,  and  to  the  right  of  Mr.  Burr 
to  make  the  motion  at  the  present  time.  It  was  a  pre- 
liminary question,  which  he  wished  first  to  be  deter- 
mined, whether  any  man,  standing  in  Mr.  Burr's  situation, 
had  a  right  to  make  such  a  motion.  He  believed  the 
fact  to  be  that  if  these  papers  should  ever  come  to  hand, 
they  would  not  go  out  of  the  hands  of  the  court ;  for  he 
was  satisfied  that  they  could  not  be  material  in  this  case, 
from  the  substance  of  one  of  those  very  papers,  which 
was  already  in  his  possession.  He  wished  not  to  waste 
the  time  of  the  court ;  but  there  were  several  preliminary 
points,  which  he  should  be  obliged  to  submit  to  their 
consideration;  and  before  the  discussion  could  be  ended, 
the  papers  would  be  here.  He  confessed  himself  ex- 
tremely unwilling  to  enter  into  any  discussion  on  these 
papers.  Gentlemen  might  take  it  for  granted,  if  they 
pleased,  that  he  felt  a  disinclination  to  furnish  them  with 
these  papers  ;  but  the  fact  was  not  so.  Gentlemen  ought 
themselves  to  have  applied  for  them  ;  for  he  was  satisfied, 
from  the  character  of  the  government,  that  every  neces- 
sary paper  would  have  been  cheerfully  supplied.  He  had 
no  doubt  the  court,  and  even  the  opposing  counsel, 
would  acquiesce  in  the  same  opinion.  He  trusted  that 
the  present  motion  was  not  made  to  show  the  talents  of 
gentlemen ;  he  assured  them  that  if  General  Wilkinson 


102  TRIAL    OF    AARON    BURR. 

should  come,  they  would  have  a  splendid  opportunity 
of  displaying  them  to  their  hearts'  content.  He  re- 
quested them  once  more  to  deliberate  on  his  propo- 
sitions. 

Mr.  Martin  assured  the  gentleman  that  there  was  no 
need  for  further  deliberation  ;  that  it  was  strange  that 
the  gentleman  should  complain  so  much  of  the  con- 
sumption of  time,  at  the  very  moment  when  he  spoke  of 
the  long  period  he  should  require  for  this  discussion, 
and  the  many  preliminary  points  which  he  had  to  sub- 
mit. The  gentleman,  too,  had  spoken  warmly  of  certain 
impressions  and  opinions,  and  even  of  our  own  ;  but  he 
trusted  that  the  gentleman  would  leave  it  to  themselves 
to  declare  their  own  impressions  ;  that  it  was  impossible 
for  him  to  search  their  hearts,  and  that  he  was  sure  that 
nothing  that  had  yet  fallen  from  them  justified  the  eulo- 
gies upon  the  government,  which  he  had  been  kind 
enough  to  attribute  to  them. 

Mr.  Wickhatn  observed  that  Mr.  Hay  had  promised 
the  appearance  of  these  papers ;  and  that  was  all  they 
wanted.  The  object  was  not  to  bring  the  president 
here,  but  to  obtain  certain  papers  which  he  had  in  his 
possession.  That  the  effect  of  the  process  required,  was 
the  result  promised  by  Mr.  Hay.  As  to  the  objection 
that  part  of  the  papers  were  confidential,  would  it  not 
be  easy  to  make  an  indorsement  on  such  as  the  president 
would  not  wish  to  go  out  of  the  court  ?  That,  however, 
Mr.  Hay's  promises  might  be  unavailing  :  at  Washing- 
ton they  might  entertain  very  different  views  from  him. 
As  to  the  opportunity  of  displaying  talents,  nothing 
would  be  better  calculated  to  defeat  that  object  than  for 
the  attorney  for  the  United  States  to  give  his  consent 
that  process  should  issue. 

Mr.  Hay. — The  motion  now  made  by  Mr.  Burr,  as  far 
as  he  could  understand  it,  was  to  obtain  from  the  court  a 
subpcena  to  the  president  of  the  United  States,  to  attend 
this  court  with  an  original  letter  written  to  him  by  General 
Wilkinson,  and  referred  to  in  his  communication  to  con- 
gress, of  the  2/th  January,  1807.  He  contended  that  it 
was  premature  ;  that  Mr.  Burr  was  not  authorized  to 
make  it  by  any  legal  precedents  that  could  be  shown,  or 
by  any  statute  in  force  in  this  country,  while  he  remained 


MOTION    TO    PRODUCE    PAPERS.         103 

in  his  present  situation.  What  was  that  situation  ?  He 
had  been  committed  for  a  misdemeanor,  and  recognized 
to  appear  before  this  court  ;  in  consequence  of  which  he 
was  now  present.  No  bills  had  yet  been  sent  to  the 
grand  jury.  In  this  situation  Mr.  Burr  applies  to 
this  court  for  a  compulsory  process  or  a  subpoena  duces 
tecum,  to  the  president  of  the  United  States,  command- 
ing him  to  attend  with  certain  papers,  and  if  he  does 
not  attend,  or  the  papers  are  not  produced,  the  court 
may  then  be  applied  to,  to  issue  an  attachment  against 
him. 

Now,  I  contend,  said  Mr.  Hay,  that  no  individual 
charged  with  a  crime,  has  any  right  to  legal  process, 
until  the  grand  jury  have  found  a  true  bill,  and  the  pros- 
ecutor has  announced  his  intention  to  proceed  there- 
upon. Gentlemen  will  please  to  point  out  in  the  con- 
stitution of  the  United  States,  in  the  laws  of  congress,  or 
in  the  common  law,  the  smallest  right  to  make  this 
motion.  They  will  search  in  vain  in  the  various 
materials  and  reports  of  the  common  law,  for  a  prece- 
dent to  justify  this  attempt.  The  acts  of  congress  supply 
them  with  no  authority  ;  and  there  is  nothing  in  the 
constitution  which  relates  to  the  subject,  except  the 
eighth  amendment,  which  most  obviously  refers  to  a  dif- 
ferent stage  of  the  prosecution  from  this.  "  In  all  crim- 
inal prosecutions,  the  accused  shall  enjoy  the  right  to 
a  speedy  and  public  trial,  &c.- -to  have  compulsory 
process  for  obtaining  witnesses  in  his  favor,  and  to  have 
the  assistance  of  counsel  for  his  defense."  Will  gentle- 
men contend  that  this  clause  relates  to  any  of  the  prelim- 
inary steps  of  the  prosecution,  before  the  prosecution 
itself  is  commenced  by  the  finding  of  the  bill  ?  This 
clause  was  never  intended  for  any  of  the  preliminary 
steps  :  the  arrest,  transportation,  or  examination  of  the 
accused.  Its  object  was  to  secure  to  every  man  the 
benefit  of  a  "  a  fair  and  impartial  trial,"  not  on  the  ex- 
amination before  the  examining  magistrate,  but  on  the 
trial  before  the  petit  jury.  When  the  trial  commences,  it 
is  then  that  the  accused  is  to  be  confronted  with  the  wit- 
nesses against  him  ;  it  is  then  that  he  is  entitled  to  com- 
pulsory process  for  obtaining  witnesses  in  his  favor;  it 
is  then  that  he  is  to  have  counsel  for  his  defense.  It  is 


104  TRIAL     OF    AARON    BURR. 

true,  sir,  that  in  this  first  stage  (incipient  stage  as  it  is 
called  in  fashionable  phrase)  Aaron  Burr  has  already  not 
one  counsel,  but  four  ;  and  not  only  counsel  in  this  dis- 
trict, but  celebrated  counsel  from  other  states.  It  is 
true  also,  that  the  clerk  of  this  court  has  already  issued 
subpcznas  ;  but  these  subpcenas  were  gratuitous,  and  had 
they  been  refused,  there  was  no  law  to  compel  him  to 
grant  them.  But  do  all  these  circumstances  prove  that 
Aaron  Burr  has  authority  at  this  stage  of  the  business  to 
make  the  present  application  to  the  court?  But  let  us 
suppose  that  they  have  obtained  what  they  require ; 
that  this  subpana  has  issued,  and  that  the  president  is  , 
here  :  that  he  has  been  called  to  this  court  from  Wash- 
ington, where  national  concerns  of  such  deep  weight 
and  importance  are  entrusted  to  his  guidance ;  what 
then? 

Mr.  Wickham  begged  leave  to  interrupt  Mr.  Hay.  It 
was  not  in  fact  a  subpcena  for  the  president,  but  only  for 
certain  papers  which  they  required. 

Mr.  Hay. — Even  that  supposition  does  not  remove 
the  prematurity  of  the  present  motion.  I  ask  what  is  to 
be  done  with  these  papers,  if  brought  hither  by  this 
subpoena  ?  If  the  president  were  to  come  here  with  them 
in  his  pocket,  I  will  say  nothing  of  the  manifest  and 
many  inconveniences  which  his  absence  from  the  seat  of 
government  might  occasion,  but  I  ask  what  would  be 
done  with  these  papers?  The  gentleman  can  not  answer 
this  question.  /  only  am  competent  to  answer.  And 
why?  Because  no  kind  of  use  can  be  made  of  this  evi- 
dence until  I  have  laid  my  bills  before  the  grand  jury, 
and  until  they  have  found  them  to  be  true.  Will  gen- 
tlemen proceed  on  such  calculations  ;  that  the  bills  will 
be  sent  up  and  that  they  will  certainly  be  found  to  be 
true  bills?  If  General  Wilkinson  comes  (and  that  he 
will  I  can  entertain  no  doubt,  from  the  intelligence  I 
have  heard  this  morning),  the  prosecution  will  certainly 
progress  ;  and  in  that  case  only  can  these  papers  be 
wanted. 

There  is  another  little  difficulty  in  this  case.  When  is 
this  process  to  be  made  returnable  ?  Some  day  must  be 
named  ;  but  can  the  court  possibly  name  any  day,  when 
the  witnesses  or  the  papers  shall  be  wanted  ?  Do  the 


MOTION    TO    PRODUCE    PAPERS.        105 

records  of  this  court  indicate  any  particular  day  when 
the  trial  is  to  commence  ?  Sir,  such  a  nomination  would 
be  completely  arbitrary.  Let  an  indictment  be  first 
found,  and  a  day  set  for  the  trial ;  and  on  that  day  pro- 
cess may  be  made  returnable.  But,  sir,  if  a  day  could  be 
fixed,  it  does  not  appear  that  this  testimony  will  be 
wanted  during  this  term.  It  depends  on  the  arrival  of 
General  Wilkinson.  It  literally  depends  on  the  winds 
and  the  waves.  The  very  language  of  the  process  Con- 
firms this  argument.  How  could  the  evidence  be  heard 
before  the  accused  is  put  upon  his  trial  ?  Perhaps  it 
may  be  said  that  this  evidence  will  be  wanted  in  case  we 
repeat  our  motion  to  commit  Aaron  Burr  for  high 
treason,  and  which  we  certainly  shall  attempt,  if  General 
Wilkinson  does  not  make  his  appearance.  On  this  point, 
two  remarks  only  are  necessary  to  be  made.  The  first  is, 
that  no  such  motion  is  actually  before  the  court.  And 
the  second  is  that  if  such  motion  were  made,  the  court 
would  have  no  right  to  issue  process  before  the  trial. 
The  court  has  no  more  rights  for  this  purpose  than  an 
individual  magistrate  would  have ;  and  in  fact  it  was 
only  a  very  few  days  ago  that  the  court  did  actually 
consider  themselves  placed  in  this  very  situation.  Now, 
if  such  an  application  had  been  made  to  your  honor  out 
of  doors,  is  there  any  law  in  America  (or  in  any  other 
part  of  the  civilized  world)  to  justify  a  postponement  of 
the  examination  until  a  subpocena  has  been  granted  ?  It 
is  true  that  evidence  on  both  sides  has  been  sometimes 
produced;  but  this  took  place  when  the  evidence  hap- 
pened to  be  present ;  but  there  does  not  exist  a  single 
precedent,  in  all  the  annals  of  jurisprudence,  where  the 
course  of  an  examination  has  been  suspended  by  an  ap- 
plication for  subpcenas,  and  the  writing  for  the  witnesses. 
The  present  motion,  therefore,  is  manifestly  premature. 
Mr.  Hay. confessed  that  his  object  was  to  save  time;  he 
was  confident  that  the  documents  would  be  forwarded 
in  a  much  shorter  time  than  they  could  possibly  obtain 
them  by  this  process.  Why  were  they  not  sooner  ap- 
plied for?  Though  there  had  been  some  correspondence 
between  Mr.  Randolph  and  Mr.  Smith,  about  an  order 
from  the  navy  department,  yet  never  before  yesterday 
was  the  materiality  of  General  Wilkinson's  letter  sug- 


io6  TRIAL    OF    AARON    BURR. 

gested ;  although  it  had  been  publicly  known  to  exist  as 
long  ago  as  the  2/th  of  January.  The  accused  and  his 
counsel  -knew  this,  yet  they  never  made  any  attempts  to 
obtain  it,  or  ever  stated  its  materiality. 

Mr.  Wick  ham  would  not  inquire,  whether  it  was  the 
object  of  the  gentleman  to  save  or  to  obtain  time; 
though  probably  the  last,  as  gentlemen  seemed  very 
solicitous  to  send  on  a  messenger  to  Washington,  to  ob- 
tain instructions  directing  them  how  to  act ;  but  if  the 
saving  of  time  was  an  object  with  the  court,  the  course 
which  he  recommended  was  the  best  calculated  to  obtain 
it.  It  was  the  shortest  way  to  resort  at  once  to  that 
expedient,  which  must  be  at  least  employed,  if  the  ex- 
pectations of  the  attorney  for  the  United  States  should 
turn  out  to  be  fallacious,  and  his  application  at  Washing- 
ton should  prove  to  be  unavailing.  The  clerk  himself, 
if  called  upon  for  subpoenas,  must  issue  them  absolutely. 
It  was  the  practice,  and  it  was  the  law ;  but  instead  of 
applying  to  the  clerk,  they  deemed  it  necessary,  in  a  case 
of  such  importance,  to  make  their  application  directly  to 
the  court.  They  were  more  willing,  too,  to  prefer  this 
course,  as  they  did  not  wish  the  presence  of  the  presi- 
dent, but  only  of  certain  papers  ;  and  it  was  not  there- 
fore their  wish  to  obtain  a  common  subpoena  for  his 
person,  but  a  subpoena  duces  tecum  for  those  papers. 

This  is  the  first  time  I  have  heard,  since  the  declara- 
tion of  American  Independence,  that  an  accused  man  is 
not  to  obtain  witnesses  in  his  behalf.  What  has  the 
gentleman  himself  done?  Are  there  not  witnesses 
present  whom  he  has  summoned,  under  the  authority  of 
this  court,  and  at  his  own  special  instance  ?  And  will  he 
at  last  admit  that  there  is  to  be  no  kind  of  equality  be- 
tween the  accused  and  the  prosecution  ;  and  that  we  are 
to  remain  here  perfectly  mute,  and  bound  hand  and  foot, 
to  await  the  decision  of  his  own  witnesses? 

But  at  what  time  are  we  to  be  entitled  to  these  priv- 
ileges ?  At  the  period  of  Mr.  Burr's  transportation? 
That  is  a  most  unwarrantable  proceeding  ;  there  is  no 
such  case  recognized  by  the  constitution  ;  and  therefore 
there  could  be  nothing  in  that  constitution  to  give  us  the 
ri^ht  of  founding  any  judicial  proceeding  on  such  a  step, 
But,  sir,  such  an  illegal  transaction  entitles  us  to  still 


MOTION     TO    PRODUCE    PAPERS.         107 

more  ;  it  entitles  us  to  the  protection  of  every  citizen  in 
the  country,  as  well  as  of  this  court.  Suppose  that  Mr, 
Burr  were  now  put  on  his  examination  ;  would  he  not 
have  a  right  to  examine  any  witnesses  who  were  beyond 
the  bar;  and  of  course  to  subpoena  every  man  who  would 
be  brought  before  you  during  the  term  of  examination  ? 
This  practice  is  every  day  pursued  by  judges  and  magis- 
trates in  superior  and  inferior  courts.  Why  not  in  the 
present  case  ? 

It  has  been  said  that  there  is  nothing  in  this  country 
to  justify  such  an  application  ;  that  there  are  no  prece- 
dents. But  I  will  quote,  sir,  another  trial,  which  was 
similar  in  its  proceedings,  and  similar,  I  trust,  in  its  re- 
sults. I  refer  to  the  cases  of  Smith  and  Ogden,  before 
the  circuit  court  of  New  York.  Subpoenas  were  actually 
taken  out,  before  the  trial,  for  Messrs.  Madison  and 
Dearborn  ;  and  even  the  expenses  of  their  traveling 
were  tendered  to  them ;  but  the  proceedings  did  not 
even  stop  here.  For  a  motion  for  an  attachment  was 
made  before  the  court,  founded  upon  the  proof  of  serv- 
ing these  subpoenas,  and  the  proof  of  offered  compensa- 
tion. The  argument  at  length  closed  on  this  motion  for 
attachment ;  but  no  man  doubted  the  right  of  the  court 
to  issue  subpoenas.  The  only  question  was,  whether  at 
that  time,  an  attachment  ought  to  issue.  The  court  was' 
unanimous  about  the  right  of  subpoenas :  but  on  the  at- 
tachment, they  were  divided  ;  Judge  Patterson  being  for 
it,  and  Judge  Talmadge  against  it. 

We  are,  however,  asked,  sir,  for  what  purpose  do  we 
wish  to  procure  this  evidence?  It  is  at  their  option  to 
say,  whether  bills  shall  be  laid  before  the  grand  jury  or 
not.  Granted,  sir,  it  is  in  the  power  of  the  attorney  for 
the  United  States  to  send  up  his  bills  or  not.  But 
should  these  bills  be  found  true,  and  the  trial  come  on, 
may  we  not  be  ruled  to  trial  instanter,  and  without  the 
aid  of  our  witnesses?  But  what  was  done  the  other  day, 
may  hereafter  be  repeated.  Witnesses  are  introduced 
on  behalf  of  the  United  States,  and  others  perhaps 
would  have  been  on  the  motion  for  commitment.  This 
motion  is  for  the  present  only  suspended  ;  but  if  that  be 
the  case,  may  not  the  testimony  now  required,  be  relevant 
to  our  defense?  The  attorney  for  the  United  States 


io8  TRIAL     OF    AARON    BURR. 

triumphantly  declares  that  we  must  do  as  he  pleases  ; 
and  that  we  know  not  what  he  intends  to  do.  That  is 
true,  sir;  but  may  not  we,  too,  do  something?  May  not 
Mr.  Burr  move  for  his  discharge?  As  he  is  to  remain 
here  until  the  court  pleases  to  discharge  him,  may  he 
not  move  for  his  recognizance  to  be  discharged?  Have 
we  no  right  also  to  all  the  the  means  which  are  necessary 
for  the  fair  administration  of  justice  ? 

"  No  time  is  stipulated  for  the  return  of  the  subpoena" 
This  is  a  great  difficulty  indeed  !  It  will  be  admitted, 
then,  that  the  court  has  a  right  to  issue  a  subpoena  ;  and 
yet,  because  there  happens  to  be  particular  provision 
about  the  day,  this  right  must  be  necessarily  null.  But, 
sir,  is  this  objection  really  justified  by  practice  ?  Has 
not  the  court  a  right  to  fix  a  day  for  the  return  of  the 
processes  of  this  sort,  according  to  their  own  convenience, 
or  the  convenience  of  parties? 

But  why  have  we  not  applied  for  these  documents 
sooner?  Yes,  sir,  it  is  asked  of  us,  why  we  have  not 
made  this  application  sooner;  and  yet  even  now  does 
the  gentleman  wish  to  delay  it.  He  declared  that  we 
have  made  it  too  soon ;  and  yet  now  he  declares  that 
we  have  made  it  too  late.  Now,  it  can  not  be  both . 
if  it  be  too  late,  it  certainly  can  not  be  too  soon. 

We  have  heard  some  remarks  upon  Mr.  Burr's  priv- 
ileges ;  and  among  others,  upon  the  four  counsellors  who 
are  to  defend  him.  But  what  kind  of  an  argument  is 
this?  If  we  turn  to  the  laws  of  congress,  we  shall  find, 
there  is  one  attorney  for  the  United  States  appropriated  to 
each  district ;  and  yet  there  are  no  less  than  three  coun- 
sellors employed  on  the  present  occasion.  No  doubt 
there  is  a  law  providing  for  the  payment  of  the  two 
others  out  of  the  treasury  ;  but  with  what  propriety  can 
these  gentlemen  complain  of  my  client  making  such  ar- 
rangements as  may  suit  his  convenience  or  his  interest  ? 
But  what  are  all  these  remarks  to  the  subpoena  duces 
tecum?  Sir,  it  is  useless  to  multiply  arguments  on  this 
subject.  It  is  a  settled  rule,  since  the  ancient  times  of 
King  John ;  since  the  formation  of  magna  charta  itself, 
that  the  accused  has  a  right  to  subpoena  witnesses ;  and  not 
only  to  any  other  form,  but  subpoena  duces  tecum,  under 
such  modifications  as  the  court  may  please  to  prescribe. 


MOTION     TO    PRODUCE    PAPERS.         109 

Mr.  Martin  read  an  extract  from  the  case  of  Smith 
and  Ogden,  in  New  York,  about  issuing  an  attachment. 

Mr.  Hay  asserted  that  this  extract  did  not  prove  the 
position  contended  for;  that  there  was  no  case  of  a  sub- 
poena having  issued  before  the  finding  of  an  indictment ; 
that  if  the  clerk  ever  had  issued  them,  it  was  a  mere 
voluntary  unauthorized  act.  He  challenged  the  ex- 
perienced gentleman  from  Maryland  to  cite  a  single 
instance  of  an  application  to  a  court  for  subpoenas,  before 
the  finding  of  a  bill  of  indictment. 

Mr.  Martin  replied  that  if  there  were  no  precedents 
on  this  very  point,  it  was  because  this  objection  never 
was  made  before,  and  he  hoped  never  would  be  made 
again. 

The  chief  justice  observed  that  he  would  not  at  pres- 
ent deliver  any  decided  opinion  upon  the  point,  though 
he  was  disposed  to  believe  that  the  accused  had  a  right  to 
apply  for  subpoenas.  He  cited  the  case  of  a  man,  who  had 
been  some  time  before  brought  before  him  and  condemned 
for  counterfeiting  bank  notes.  In  that  case  the  prisoner 
had  attempted  to  delay  the  trial  by  pretending  that  he 
had  witnesses  in  Baltimore;  which  plea  had  been  rejected 
by  the  court,  principally  on  the  ground  that  he  had  not 
before  summoned  those  witnesses.  The  chief  justice, 
however,  observed  that  he  should  not  decide  this  ques- 
tion at  present,  but  reserve  it  for  future  decision  ;  in  the 
meantime  the  counsel  might  proceed  with  the  other  part 
of  the  argument. 

Mr.  Martin  then  rose  to  support  the  propriety  of 
granting  this  particular  subpoena.  He  laid  down  as  a 
general  principle,  in  all  civil  or  criminal  cases,  that  every 
man  had  a  right  to  process  to  establish  his  rights  or  his 
innocence.  MacNally's  Evidence,  vol  i.  p.  255.  Does 
there  exist  a  single  case  in  the  British  authorities  in 
opposition  to  this  doctrine?  Surely  these  gentlemen  do 
not  intend  to  represent  .the  president  as  a  kind  of  sove- 
reign, or  as  a  king  of  Great  Britain.  He  is  no  more  than 
a  servant  of  the  people.  But  even  the  British  king  may 
be  called  upon  to  give  testimony  to  his  people.  It  is 
true,  he  is  not  obliged  to  be  subpoenaed,  and  to  appear  in 
a  court  of  justice  ;  but  his  testimony  under  his  sign  man- 
ual is  received  as  authentic  evidence. 


i  to  TRIAL     OF    AARON    BURR. 

Chief  Justice. — The  counsel  on  the  opposite  side  admit 
that  the  president  may  be  summoned. 

Mr.  Martin. — They  have  surely  never  admitted  it 
before.  However,  I  am  happy  that  is  now  admitted,  as 
it  will  spare  me  a  part  of  my  argument.  I  will  proceed 
then  to  the  others.  The  next  question  is,  whether  the 
president  can  be  summoned  to  attend  with  certain 
papers.  One  of  them  we  want  is  an  original  letter  from 
General  Wilkinson,  of  the  2 1st  October,  and  received  by 
the  president  on  the  2/th  of  November.  This  letter,  as 
appears  by  Mr.  Burr's  affidavit,  is  considered  by  him  as 
necessary  to  his  defense  ;  and  his  counsel,  so  far  as  they 
understand  the  subject,  are  of  the  same  opinion.  The 
other  papers  are  copies  of  official  orders  by  the  navy  and 
war  departments.  It  may  be  said,  sir,  that  if  application 
were  made  to  those  departments,  Mr.  Burr  had  a  right  to 
the  papers :  for  we  had  supposed  that  every  citizen  was 
entitled  to  such  cqpies  of  official  papers  as  are  material  to 
him.  And  I  have  never  heard  of  but  one  instance  where 
they  were  refused  ;  and  this  was  most  certainly  under 
presidential  influence. 

I  have  asserted  that  Mr.  Burr  was  entitled  to  a  copy  of 
these  orders.  We  intended  to  show  that  these  orders 
were  contrary  to  the  constitution  and  the  laws,  and  that 
they  entitled  Mr.  Burr  to  the  right  of  resistance.  We 
intended  to  show  that  by  this  particular  order  his  prop- 
erty and  his  person  were  to  be  destroyed  ;  yes,  by  these 
tyrannical  orders  the  life  and  property  of  an  innocent 
man  were  to  be  exposed  to  destruction.  We  did  not 
expect  these  originals  themselves.  But  we  did  apply  for 
copies ;  and  were  refused  under  presidential  influence. 
In  New  York,  on  the  farcical  trials  of  Ogden  and  Smith, 
the  officers  of  the  government  screened  themselves  from 
attending  under  the  sanction  of  the  president's  name. 
Perhaps  the  same  farce  may  be  repeated  here  :  and  it  is 
for  this  reason  that  we  apply  directly  to  the  president  of 
the  United  States.  Whether  it  would  have  been  best  to 
have  applied  to  the  secretaries  of  state,  of  the  navy,  and 
war,  I  can  not  say.  All  that  we  want  is,  the  copies 
of  some  papers,  and  the  original  of  another.  This  is  a 
peculiar  case,  sir.  The  president  has  undertaken  to  pre- 
judge my  client  by  declaring,  that  "  Of  his  guilt  there 


MOTION     TO    PRODUCE    PAPERS.         in 

can    be   no    doubt."     He   has   assumed    to   himself  the 
knowledge  of  the  Supreme  Being  himself,  and  pretended 
to    search    the    heart    of    my    highly    respected    friend. 
He  has  proclaimed  him  a  traitor  in  the  face  of  that  coun- 
try which  has  rewarded  him.     He  has  let  slip  the  dogs  of 
war,  the   hell-hounds   of  persecution,  to  hunt  down  my 
friend.      And  would  this  president  of  the  United  States, 
who  has  raised  all  this  absurd  clamor,  pretend  to  keep 
back  the  papers  which  are  wanted  for  this  trial,  where 
life  itself  is  at  stake  ?     It  is  a  sacred  principle,  that  in  all 
such  cases,  the  accused  has  a  right  to   all   the   evidence 
which  is  necessary  for  his  defense.     And  whoever  with- 
holds, willfully,  information  that  would  save  the  life  ot  a 
person  charged  with   a   capital  offense,  is  substantially  a 
murderer,   and    so    recorded  in    the    register   of  heaven. 
Can  it  then   be  presumed   that  the  president  would   be 
sorry  to  have  Mr.  Burr's  innocence  proved  ?     No,  it  is 
impossible.      Would  the  president  of  the  United   States 
give  his  enemies  (for  enemies  he  has,  like  other  great  and 
good  men)  would  he  give  them  the  proud  opportunity  of 
saying  that  Mr.  Burr  is  the  victim  of  anger,  jealousy,  and 
hatred  ?     Will    he    not    act    with    all    possible   candor  ? 
When  told  that  certain  papers  are  material  to  our  de- 
fense, will  he  not   be  proud  to  say  to  us,  "  Sirs,  you  may 
have  them  ;   I  will  grant  you  every  possible  advantage." 
Had  this  been  done,  the  attorney  for  the  United  States 
(and  perhaps  the  executive)  never  would   have  said  that 
these  papers  are  no   more  material   to  us  than   the    first 
paragraph   of  the   laws  of  congress.     These   gentlemen 
forget  that  it  is  not  their  province  to  decide  whether  the 
evidence  is  material  to  us  or  not.     It  is  for  the  court  to 
say  whether  it  bears  upon  the  case ;  and  whether  it  is  to 
go  before  the  petit  jury,  or  to  come  before  themselves,  if 
the  motion  to  commit  for  treason  be  continued. 

They  seem  to  think  that  we  are  not  even  to  be  trusted 
with  these  papers.  But  why  do  they  attribute  motives 
to  Mr.  Burr's  counsel,  which  they  would  themselves 
disdain  ?  Why  not  do  as  much  honor  to  ourselves,  as  to 
the  president  of  the  United  States  himself? 

It  may  be  suggested  that  this  is  a  private  and  con- 
fidential letter  from  General  Wilkinson  to  the  president. 
It  was  so  said,  indeed,  yesterday.  But  if  the  president 


ii2  TRIAL    OF    AARON    BURR. 

were  here  himself,  the  court  would  have  a  right  to  de- 
mand, whether  in  confidential  conversations  General 
Wilkinson  had  not  given  very  different  statements  from 
those  which  he  might  here  produce  ?  What,  sir,  if 
General  Wilkinson  had  reposed  as  much  confidence,  if 
he  had  instilled  as  much  poison  into  the  ear  of  the  pres- 
ident, as  Satan  himself  breathed  into  the  ear  of  Eve  ;  the 
president  would  have  been  still  responsible  to  a  court  of 
justice,  and  bound  to  disclose  his  communications.  Th.e 
law  recognizes  none  of  this  kind  of  confidence.  I  refer 
your  honors  to  2  Atkins,  524,  from  which  it  appears 
that  no  man  is  privileged  to  withhold  secrets,  and  to 
II  State  Trials,  Duchess  of  Kingston's  case.  There  a 
physician  entreated  of  the  court  to  excuse  him ;  but 
even  his  professional  confidence  (though  of  the  most 
delicate  nature)  would  not  screen  him.  Lord  Barring- 
ton  in  that  case  conjured  them  to  excuse  his  giving  in 
testimony  what  had  been  disclosed  to  him  in  all  the  con- 
fidence of  private  friendship.  All  his  solicitations  were 
disregarded.  In  MacNally,  page  250,  it  is  declared  that 
there  can  be  no  secrets,  but  those  which  are  confided  to 
counsellors  and  attorneys.  Now  let  us  suppose  that  this 
information  was  conveyed  to  him  by  a  letter  ;  nay,  by  a 
private  and  confidential  letter.  Could  we  not  have  the 
president  produced  here;  could  we  not  examine  him, 
whether  he  had  ever  received  such  a  letter  ? 

But  perhaps  we  shall  be  told  that  this  would  be  mak- 
ing too  free  with  high  characters ;  that  we  call  the 
honor  of  General  Wilkinson  into  question  ;  and  that  it 
is  not  less  than  treason  to  suppose  it  possible  that  Gen- 
eral Wilkinson  is  not  as  pure  as  an  angel.  But,  sir,  will 
it  be  forgotten  that  this  man  has  already  broken  the 
constitution  to  support  his  violent  measures ;  that  he 
has  already  ground  down  the  civil  authorities  into  dust  ; 
and  subjected  all  around  him  to  a  military  despotism  ? 
Is  it  possible  to  believe  that  such  a  man  may  not  swerve 
from  the  strict  line  of  rectitude  and  decorum  ?  To  show 
the  ease  with  which  one  man  may  be  destroyed  by 
another  man  or  by  a  faction,  and  with  the  same  unfeel- 
ing indifference  as  a  philosopher  sees  rats  struggling  in 
an  air  pump,  I  will  read  a  quotation  from  Tucker's 
Blackstone.  [Here  he  read  it.]  Mr.  Martin  produced 


MOTION    TO    PRODUCE    PAPERS.         113 

several  instances,  where  the  originals  of  recorded  papers 
were  brought  before  a  court  of  justice. 

Respecting  copies  of  the  navy  orders  for  destroying 
the  property  and  person  of  Mr.  Burr,  it  is  very  material 
to  possess  them.  It  may  be  necessary  to  show  that 
these  acts,  which  the  prosecutors  are  pleased  to  deem 
treasonable,  were  in  fact  nothing  but  justifiable  means 
for  defending  his  own  rignts. 

Mr.  Mac  Rae. — May  it  please  the  court :  I  regret  ex- 
tremely that  on  a  question  so  simple,  and  so  eminently 
divested  of  all  personal  feelings,  as  the  present,  the 
counsel  for  the  prisoner  should  have  considered  it  as 
their  duty  to  wander  so  widely  from  the  subject  before 
us.  I  could  have  wished,  sir,  that  instead  of  talking 
about  shadows;  instead  of  complaining  against  certain 
pretended  persecutions  attributed  to  the  government  of 
the  United  States;  instead  of  indulging  in  defamation 
and  abuse  against  the  officers  of  government,  which  can 
neither  be  justified  nor  excused,  they  had  confined  their 
observations  to  the  single  and  simple  question  now  pre- 
sented to  your  consideration.  Whether  this  court  had 
the  right  to  issue  a  subpoena  duces  tecum,  addressed  to 
the  president  of  the  United  States?  I  will  not,  sir, 
imitate  the  example  which  has  been  thus  bountifully  set 
me,  however  ample  may  be  the  materials,  or  however 
rich  the  harvest  which  is  now  spread  before  me.  What- 
ever I  may  think  of  the  guilt  of  Aaron  Burr ;  by  what- 
ever emotions  of  disgust  and  indignation  my  bosom  may 
be  agitated  by  a  contemplation  of  his  conduct,  I  will 
attempt  to  suppress  my  opinions  and  feelings  for  the 
present.  The  time  may  come,  sir,  when  I  shall  be  at 
full  liberty  to  give  them  loose.  When  Aaron  Burr  shall 
be  put  upon  his  trial ;  when  he  shall  attend  at  your  bar 
as  a  dangerous  and  indicted  criminal,  I  shall  not  hesitate, 
sir,  in  the  presence  of  the  petit  jury,  in  the  presence  of 
this  court,  and  in  the  presence  of  the  whole  world,  to  ex- 
press all  my  opinions  and  feelings.  But,  sir,  I  shall 
waive  this  privilege  for  the  present.  I  can  not  but  con- 
sider it  as  highly  indecorous,  when  contemplating  this 
single  question,  to  embrace  all  the  merits  of  the  case. 
Mr.  Martin  need  not  have  talked  so  much  of  the  presi- 
dent's elevation.  He  need  not  have  taken  such  uncom 
8 


ii4  TRIAL    OF    AARON    BURR. 

mon  pains  to  expatiate  upon  the  high  office  which  he 
fills,  nor  so  invidiously  compare  it  with  the  irresponsible 
monarchy  of  England  ;  as  if  the  present  president  con- 
sidered himself  superior  to  the  laws.  Although,  in  this 
country  the  decisions  of  our  courts  may  be  considered  as 
doubtful,  it  is  perhaps  certain  that  a  subpoena  ought  not 
to  go  against  him  ;  yet,  sir,  anxious  to  show  to  the  world 
that  we  feel  nothing  of  that  spirit  of  persecution  which 
has  been  so  industriously  and  idly  attributed  to  our 
government ;  solicitous  to  give  an  unerring  proof  of  the 
principles  on  which  we  act,  we  shall  not  shelter  our- 
selves under  these  precedents  established  by  the  courts 
of  the  United  States.  Elevated  as  our  illustrious  pres- 
ident is,  yet  our  principles  are,  that  when  life  is  in  jeop- 
ardy, he  may  be  summoned  like  any  individual,  where 
he  is  able  to  disclose  important  facts,  and  when  the 
national  interests  will  admit  of  his  attendance.  As, 
then,  we  admit  that  a  subpczna  may  issue  against  him  as 
well  as  against  any  other  man,  where  was  the  necessity  of 
expatiating  so  widely 'upon  his  elevated  station  ?  When 
all  the  facts  which  relate  to  this  transaction  come  to  be 
fully  developed  ;  when  truth,  and  not  passion,  shall 
guide  our  understanding,  I  do  not  hesitate  to  affirm  my 
belief,  that  the  bolt  which  has  been  leveled  against  his 
reputation  will  vanish  into  air.  I  am  sorry,  sir,  to  be 
under  the  necessity  of  making  such  remarks  as  these, 
but  let  the  blame  fall  where  it  is  due,  upon  the  gentle- 
man from  Maryland,  who  has  extorted  them,  and  not 
upon  myself.  And  here,  sir,  permit  me  to  read  the  affi- 
davit on  which  this  motion  is  grounded.  I  do  not  un- 
derstand from  this  affidavit,  that  any  other  order  is 
required  from  the  navy  department,  than  the  one  which 
was  addressed  to  Commodore  Shaw,  and  is  said  to  have 
been  published  in  The  Natchez  Gazette.  That  order  is 
already  in  court  ;  and  the  attorney  for  the  United  States 
has  pledged  himself  to  produce  it,  if  the  court  will  but 
decide  on  the  propriety  of  its  exhibition.  The  only 
new  paper,  therefore,  which  is  required  by  this  affidavit 
is  the  original  letter  of  General  Wilkinson  to  the  presi 
dent  of  the  United  States. 

Mr.  WickJiam  here  observed  that  the  gentleman  had 
mistaken   the  object  of  the  application.     We  not  only 


MOTION    TO    PRODUCE    PAPER&.         115 

(said  he)  want  this  letter,  but  the  order  of  the  navy 
department.  They  tell  us  they  have  the  order,  and 
are  ready  to  produce  it ;  but  we  doubt  the  identity  of 
this  copy.  Without  meaning  any  imputation  upon  Mr. 
Smith,  we  say -that  they  have  several  orders  from  his 
department.  Let  us  see  this  order,  then,  and  we  may 
ascertain  whether  it  be  the  identical  one  which  we  want. 
Let  us  but  inspect  the  order  which  these  gentlemen 
have  in  their  possession,  and  if  it  be  the  one  which  we 
require,  the  process  to  be  issued  may  be  made  more 
limited  in  its  operation. 

Mr.  Hay. — The  secretary  of.the  navy  inclosed  this 
order  to  me  ;  for  what  purpose  I  know  not,  unless  it  was 
for  the  sake  of  showing  it.  But  as  I  am  not  particularly 
instructed  on  this  point,  I  do  not  conceive  myself  au- 
thorized to  produce  it  at  present.  I  will  exhibit  this 
paper  if  the  court  thinks  it  material. 

Mr.  Wickhani. — We  have  a  right  to  apply  to  the 
president  of  the  United  States  for  the  copy  of  any  order  ; 
but  if  it  is  alleged  to  be  a  state  paper,  it  must  not  be 
refused  on  the  allegations  of  counsel,  but  on  the  oath  of 
the  officer. 

Mr.  Mac  Rae. — Is  your  subpoena,  then,  to  be  addressed 
to  these  other  officers  ? 

Mr.  WickJiam. — No,  sir,  to  the  president  alone,  who 
has  all  these  offices  under  his  control. 

Mr.  Mac  Rae. — I  will  attempt  to  satisfy  the  court  thai 
the  counsel  have  not  grounded  their  motion  upon  this 
affidavit.  [Here  Mr.  Mac  Rae  read  the  affidavit.]  "  May 
be  material  to  his  defense."  Now,  sir,  how  is  this  ?  I 
had  always  understood  before,  that  all  applications  of 
this  kind  must  be  founded  upon  positive  averment ;  that 
the  party  was  not  at  liberty  to  state  vague  and  loose  con- 
jectures, but  that  he  must  give  undoubting  assertions: 
and  what  was  still  further,  that  he  should  swear  that 
these  documents  were  material  to  his  defense.  The  oath  " 
is  not,  that  they  may  possibly  be  of  use  :  that  they  may 
or  may  not  be  material.  On  this  subject  it  is  not  merely 
sufficient  to  advance  some  precarious  conjectures  ;  but 
the  party  must  explicitly  state  his  belief,  not  that  they 
may  be,  but  that  they  are  material.  Nay,  still  further, 
in  criminal  cases,  the  party  is  not  merely  required  by  the 


n6  TRIAL    OF    AARON    BURR. 

court  to  say  that  they  are  material,  but  to  say  in  what 
respect  they  are  so.  In  these  points,  then,  this  affidavit 
is  essentially  defective.  It  certainly  does  not  state  how 
these  documents  are  material ;  it  does  not  even  assert 
that  they  are  material,  but  only  advances  a  conjecture 
that  they  may  be  so. 

I  believe,  sir,  on  the  authority  of  a  decision  of  the 
court  of  the  United  States,  in  the  case  of  Cooper  of 
Northumberland  (p.  13  of  the  report  of  the  trial),  it 
may  be  shown  that  the  present  party  has  no  authority 
to  demand  these  papers. 

And,  sir,  the  case  of  Cooper  was  materially  distin- 
guished from  the  one  before  the  court,  in  this  important 
feature,  that  the  public  officers  were  in  the  very  city,  and 
on  the  very  spot  where  the  trial  was  conducted.  The 
seat  of  government  was  then  at  Philadelphia,  and  not  at 
Washington.  This  case,  sir,  was  well  known  to  every 
individual  who  was  interested  in  the  politics  of  those 
times.  It  is  sufficient  merely  to  repeat,  that  Cooper  was 
sued  for  a  libel ;  that  he  put  in  two  pleas :  first,  not 
guilty:  secondly,  justification;  and  that  in  order  to  sup- 
port his  plea  of  justification,  he  applied  to  the  court  for 
a  subpfsna  to  the  president  of  the  United  States  to  obtain 
certain  public  documents.  And  what  did  the  judge 
decide  ?  He  decided  that  the  subp&na  ought  not  to 
issue,  and  declared  in  strong  terms  against  the  principle 
now  contended  for. 

But,  sir,  strong  as  that  opinion  is  in  our  favor,  and 
though  it  completely  goes  to  deprive  the  prisoner  of 
the  privilege  which  he  claims  ;  and  though  it  is  to  be  con- 
sidered as  law  in  the  courts  of  the  United  States  ;  yet, 
sir,  abhorring  anything  that  looks  like  persecution,  we 
should  have  disdained  to  shelter  ourselves  under  this 
abominable  precedent.  We  desire  that  the  prisoner  may 
possess  all  the  information  which  is  necessary  to  his  de- 
fense. It  is  my  sincere  wish,  in  this  as  well  as  in  every 
other  point,  to  give  him  all  the  assistance  which  evi- 
dence can  afford.  From  our  souls,  do  we  abhor  every 
the  slightest  thing  which  wears  the  appearance  of  perse- 
cution. Sir,  I  have  only  read  this  authority,  to  show  that 
we  might  easily  have  refused  this  demand  under  one  of  the 
precedents  established  by  a  court  of  the  United  States 


MOTION     TO    PRODUCE    PAPERS.         117 

Mr.  Martin  has  said  that  no  secrets  ought  to  be  with- 
held from  a  court  of  justice,  except  those  which  have 
been  confidentially  intrusted  to  legal  counsel ;  that  this 
is  the  only  exception  to  the  general  doctrine  of  evidence  : 
and  that  in  all  other  cases,  the  witnesses  may  be  com- 
pelled to  give  information.  The  exception  recognized 
by  Mr.  Martin,  certainly  does  exist ;  but  Mr.  Martin 
has  taken  ground  too  narrow,  nor  is  that  the  only  case 
where  the  witness  is  permitted  to  keep  his  information  to 
himself.  Sir,  if  a  confidential  communication  has  been 
made  to  Thomas  Jefferson,  he  is  not  responsible  to  a 
court  of  justice  for  its  contents.  I  speak,  sir,  with  due 
submission  to  the  court ;  but  I  ground  my  opinion  prin- 
cipally on  a  decision  of  the  supreme  court  of  the  United 
States.  My  position  is  that  if  a  communication  is  con- 
fidentially made  to  Thomas  Jefferson,  he  is  not  bound 
to  appear  before  this  or  any  other  court,  to  disclose  it. 
It  is  unnecessary  to  collect  arguments  to  demonstrate 
the  soundness  of  the  policy  on  which  this  principle  is 
founded  ;  that  would  be  an  easy  task.  But,  sir,  instead 
of  wasting  my  time  and  that  of  the  court  upon  the 
policy  of  the  measure,  I  will  refer  you  at  once  to  a  prece- 
dent. In  the  case  of  Marbury  v.  Madison,  in  the 
supreme  court  of  the  United  States,  Cranclis  Reports, 
pages  143,  144,  145,  Mr.  Lincoln,  the  attorney-general, 
was  called  into  court,  and  it  was  vehemently  contended 
that  he  might  be  compelled  to  give  information  like  any 
other  citizen.  Mr.  Lincoln  stated  his  objections  in  the 
following  terms:  First.  "  That  he  did  not  think  himself 
bound  to  disclose  his  official  transactions,  while  acting 
as  secretary  of  state."  Second.  "  That  he  ought  not  to 
be  compelled  to  answer  anything  which  might  tend  to 
criminate  himself."  The  court  supported  him  in  these 
objections.  It  follows  from  these  opinions  that  the  court 
should  always  receive  special  information  about  the 
papers,  which  a  party  wishes  to  obtain,  before  they 
authorize  him  to  demand  them.  They  ought  to  ascer- 
tain whether  these  papers  contain  confidential  commu- 
nications to  the  head  of  the  government.  But,  sir,  if 
the  papers  which  are  called  for  by  the  affidavit  of  Aaron 
Burr  be\of  a  public  nature,  why  should  the  court  issue  a 
duces  tecum  to  demand  them?  The  opposite 


n8  TRIAL     OF    AARON    BURR. 

counsel  may  rest  assured,  and  the  attorney  for  the 
United  States  has  actually  pledged  himself  solemnly  to 
this  court  that  he  would  spare  no  exertions  to  obtain  a 
copy  of  them,  if  the  copy  would  be  sufficient;  or  the 
originals,  if  copies  will  not  avail.  But,  sir,  if  this  letter 
be  of  a  confidential  nature,  it  is  not  the  duty  of  the  pres- 
ident of  the  United  States  to  produce  it  in  this  court  or 
anywhere  else. 

And  where  is  the  propriety  of  directing  this  subpoena 
in  any  event  to  the  president?  If  it  be  a  public  letter, 
it  is  undoubtedly  deposited  with  every  other  paper  of 
the  same  complexion  in  the  archives  of  state.  Why, 
then,  is  not  this  subpoena  addressed  to  the  secretary  of 
state,  instead  of  the  president  of  the  United  States? 
There  is  no  specific  reason  why  this  informality  is 
adopted ;  for  gentlemen  do  not  even  pretend  that  they 
want  the  president's  person.  All  that  they  pretend  to 
require  are  certain  papers  in  his  possession  ;  and  these 
are  evidently  to  be  obtained,  without  the  necessity  of 
dragging  him  from  Washington  to  this  city.  But,  sir, 
if  these  papers  are  not  of  public  nature,  but  confidential 
communications,  then  it  is-  necessary  or  proper  to  sub- 
pcena Thomas  Jefferson. 

One  remark  more  and  I  have  done.  The  gentlemen 
insist  upon  the  necessity  of  producing  in  this  court  the 
original  letter  from  General  Wilkinson  to  the  president 
of  the  United  States.  I  will  suggest  an  expedient, 
which  may  obviate  every  possible  inconvenience.  If 
your  honors  say  that  a  copy  of  this  letter  may  be  read 
in  evidence,  like  copies  of  all  other  documents  in  the  de- 
partments of  government,  then  also  will  the.  attorney  for 
the  United  States  consent  that  this  copy  may  be  read 
and  have  the  very  same  effect  as  the  original.  But  gen- 
tlemen may  contend  that  General  Wilkinson  would  ob- 
ject to  this  copy.  Sir,  General  Wilkinson  would  have 
no  right  to  urge  such  an  objection ;  and  much  less, 
when  he  should  understand  that  this  very  copy  is  ex- 
pressly introduced  into  the  court,  on  the  principle  of 
possessing  the  same  validity  as  the  original  itself.  But, 
sir,  if  General  Wilkinson  should  dare  to  raise  this  objec- 
tion ;  if  he  should  pretend  to  declare  that  this  was  not 
his  letter,  or  that  it  was  not  an  authenticated  and  correct 


MOTION     TO    PRODUCE    PAPERS.         119 

copy,  a  few  days  only  would  elapse  when  the  original 
would  certainly  be  produced 

Mr.  Botts. — In  a  government  of  laws,  where  majesty 
and  prerogative  are  proscribed,  and  where  the  authorities 
of  all  the  public  functionaries  are  to  be  exercised  for  the 
benefit  of  the  people,  there  are  but  few  instances  in 
which  the  policy  of  state  secrecy  can  prevail.  In  the  na- 
tional intercourse  with  foreign  states,  where  the  relations 
present  subjects  fit  for  privacy,  the  rare  duty  of  con- 
cealment may  occur.  Some  time  ago,  when  the  hue 
and  cry  of  treason  was  rung  through  the  country,  there 
might  have  been  an  excuse  for  the  claim  of  securing 
from  the  eye  of  the  suspected,  particular  acts  of  the  cab- 
inet. At  this  moment  it  will  not  be  pretended  that  the 
public  good  can  require  that  Mr.  Burr  should  not  have 
the  means  from  the  departments  required  for  his  justifi- 
cation. 

Can  any  innocent  purpose,  said  Mr.  Botts,  be  sub- 
served by  the  president's  .withholding  the  'documents 
demanded  ;  and  will  the  counsel  malign  him  by  imput- 
ing to  him  a  guilty  one?  The  act  of  congress  provides 
fees  for  copies  from  the  ministerial  offices  under  the  con- 
trol of  the  president,  and  every  individual  has  a  right  to 
demand  them  on  paying  the  statutory  charges.  If  indi- 
viduals in  common  have  this  right,'  why  has  it  been 
denied  to  Mr.  Burr,  whose  fate  may  depend  in  some 
degree  on  them?  One  of  the  copies  was  promised,  but 
the  promise  was  forgotten.  State  policy  in  England  has 
done  a  great  deal  of  mischief;  it  has  often  sheltered 
wicked  and  corrupt  ministers  from  the  punishment  due 
to  their  crimes :  yet  even  there  (where  the  principles  of 
liberty  are  not  understood  so  well  as  in  this  country)  in 
Sir  Home  Popham's  trial,  Lord  Melville,  president  of  the 
board  of  admiralty,  was  compelled,  a  few  months,  ago, 
to  appear  and  give  evidence  concerning  the  instructions 
he  had  given  to  that  admiral.  I  do  not  now  complain 
of  the  illiberal  caution  of  the  gentlemen  in  keeping 
hidden  their  written  evidence,  which,  if  known  in  time, 
we  might  refute ;  but  such  testimony  as  we  think 
material  in  our  defense,  we  are  at  any  rate  entitled  to 
without  favor  from  them.  But  the  gentlemen  have 
made  a  concession  of  great  liberality!  They  say  they 


i2o  TRIAL    OF    AARON    BURR. 

are  willing  that  the  president  may  be  summoned  to 
attend,  but  not  to  give  evidence  when  he  does  attend  : 
not  to  disclose  anything  but  what  he  may  himself  con- 
descend to  make  known.  The  president  may  be,  and 
no  doubt  is,  a  very  great  and  good  man  ;  but  while  his 
policy  in  relation  to  the  accused  is  so  completely  envel- 
oped in  mystery,  the  counsel  for  the  prosecution  must 
pardon  us,  if  we  can  not  consent  to  pin  our  faith  on  his 
sleeve,  arid  if  we  choose  rather  to  betake  ourselves  to 
our  legal  rights. 

The  opinion  given  by  Judge  Chase  on  the  trial  of 
Cooper,  was  reprobated  by  the  politics  of  those  gentle- 
men who  prosecute  for  the  United  States  ;  and  yet  they 
now  wish  to  avail  themselves  of  that  authority.  I  con- 
gratulate them  upon  their  dereliction  of  the  old  demo- 
cratic opinions  which  prevailed  at  the  time  of  Cooper's 
trial,  and  which  I  thought  would  have  gone  with  my 
friends  to  their  graves. 

Mr.  Mae  Rae  observed  that  Mr.  Botts  had  misrepre- 
sented the  object  for  which  fte  had  introduced  the  opin- 
ion of  Judge  Chase  ;  that  he  had  not  pretended  to  use 
it  as  authority  ;  but,  on  the  contrary,  had  expressly 
declared  that  he  scorned  to  avail  himself  of  it. 

Mr.  Wickham  said  that  Judge  Chase's  opinion  pro- 
nounced in  the  case  of  Cooper  was  not  correctly  under- 
stood. It  was  not  that  the  president  could  not  be  sum- 
moned as  a  witness,  but  that  he  ought  not  be  summoned 
to  give  evidence  against  himself. 

Mr.  Botts  proceeded  to  say  that  even  that  qualified 
opinion  of  Judge  Chase  had  been  reprobated  by  .the  gen- 
tlemen ;  but  now  they  shelter  themselves  under  it  in 
effect,  because  they  use  it  as  authority  against  the  suc- 
cess of  the  present  motion. 

The  gentlemen  contend  that  the  executive  must  judge 
whether  the  documents  require  secrecy  or  not.  But 
how  can  this  judgment  be  exercised  until  they  are  called 
upon  ?  And  how  can  the  government  be  legally  called 
on  but  by  process  of^stibpazna  duces  tecum  ?  When  this 
is  served  the  president  may  make  out  his  return. 

As  to  the  argument  that  a  copy  of  General  Wilkin- 
son's letter  will  be  sufficient :  Suppose,  said  Mr.  Botts, 
General  Wilkinson  should  swear  to  one  thing.,  and  the 


MOTION     TO    PRODUCE    PAPERS.         121 

copy  of  his  letter  should  say  another;  would  you  con- 
demn him  upon  the  president's  certificate  merely  that 
the  paper  produced  contained  a  true  copy  of  a  letter 
from  him  ? 

He  concluded  with  observing  that,  if  a  time  shall  ever 
arrive  when  a  person  shall  stand  accused  of  a  crime  of 
the  highest  nature;  of  a  crime  by  which  his  life  is  endan- 
gered, if  a  part  of  the  testimony  shall  be  concealed  by 
those  who  administer  the  government,  and  no  policy  of 
state  requires  it ;  and  yet  the  court  does  not  compel  it 
to  be  produced  to  screen  the  devoted  victim  :  it  will  be 
a  disastrous  time  for  our  country  ! 

Mr.  VVirt. — The  counsel  for  the  prosecution  do  not 
deny  that  the  general  subpoena  ad  testificandum  may  be 
issued  to  summon  the  president  of  the  United  States, 
and  that  he  is  as  amenable  to  that  process  as  any  other 
citizen.  If  his  public  functions  disable  him  from  obey- 
ing the  process,  that  would  be  a  satisfactory  excuse  for 
his  non-attendance  pro  hcsc^vice  ;  but  does  not  go  to 
prove  his  total  exemption  from  the  process.  We  think 
further,  sir,  that  a  man  standing  in  the  situation  of  the 
prisoner,  has  also  the  right  to  demand  all  papers  material 
for  his  defense,  wheresoever  they  may  be,  the  disclosure 
of  which  wiH  not  compromit  the  national  safety  ;  but 
then  the  papers  required  must  be  shown  to  be  material 
for  his  defense.  The  siibpoena  ad  testificandum  is  a  mat- 
ter of  right,  and  the  prisoner  might  have  demanded  it 
from  the  clerk  without  the  intervention  of  the  court ; 
but  here  is  a  motion  for  a  subpana  duces  tecum,  to  com- 
pel the  president  to  produce  certain  papers  of  state,  the 
materiality  of  which  is  not  shown.  . 

I  shall  contend  first,  sir,  that  the  subpoena  duces  tecum 
is  not  a  process  of  right ;  that  the  motion  for  it,  is  a 
motion  addressed  to  the  discretion  of  the  court ;  and 
that  the  court  may  award  or  withhold  it  as  they  see 
fit. 

In  the  next  place,  I  shall  contend  that  this  discre- 
tion of  the  court  should  be  controled  and  determined 
only  by  the  relevancy  and  materiality  of  the  papers 
required. 

And  thirdly,  that  in  the  present  instance,  the  rel- 
evancy and  materiality  of  the  papers  required  are  so 


122  TRIAL     OF    AARON    BURR. 

far  from  being  shown,  that,  from  everything  which 
appears,  they  are  both  immaterial  and  entirely  irrel- 
evant. 

I  shall  proceed  to  show,  in  the  first  place,  that  t\iQ  sub- 
poena duces  tccum  is  not  a  process  of  right,  but  that  the 
application  for  it  is  addressed  merely  to  the  discretion  of 
the  court. 

Mr.  Wickham. — That  is  admitted,  sir ;  we  admit  that 
it  is  an  application  to  the  sound  discretion  of  the  court. 

Mr.  Wirt. — I  thank  you  for  the  admission,  sir.  You 
have  relieved  me  from  -the  unnecessary  trouble  of  so 
much  of  my  argument.  It  being  conceded,  then,  that 
this  is  an  application  to  the  discretion  of  the  court, 
the  question  naturally  presents  itself,  by  what  circum- 
stances should  that  discretion  be  controled  and  deter- 
mined ?  Should  it  be  by  the  mere  wish  of  the  prisoner? 
If  so,  it  is  in  vain  that  the  court  possesses  any  discretion 
on  the  subject ;  the  only  discretion  exercised  about  it, 
is  the  discretion  of  the  prisoner.  He  has  but  to  ask  and 
have  ;  and  by  his  mere  wish  he  changes  this  from  a  pro- 
cess flowing  from  the  discretion  of  the  court,  into  a 
process  of  absolute  right.  Consider  this  wide  and  bold 
doctrine  on  the  ground  of  expediency.  Would  you 
summon  any  private  individual  from  the  remotest  part 
of  the  United  States,  to  produce  a  paper  on  the  mere 
wish  of  the  prisoner,  without  his  defining  the  paper 
and  showing  how  it  bore  upon  his  defense?  If  you 
would,  you  put  the  pursuits  and  the  peace  of  every 
individual  in  the  United  States  at  the  mercy  of  the  pris- 
oner's caprice  and  resentments.  This  argument,  from 
inconvenience,  assumes  an  attitude  of  the  most  awful 
and  alarming  importance,  when  you  extend  it  to  a  case 
like  this  before  the  court.  A  prisoner  seldom  has  any 
cordial  amity  for  the  government  by  which  he  is  prose- 
cuted for  a  crime.  The  truth  is,  that  he  feels  himself  in 
a  state  of  war  with  that  government ;  and  the  more  des- 
perate his  case,  the  more  ardent  will  be  his  spirit  of 
revenge.  Would  you  expose  the  offices  of  state  to  be 
ravaged  at  the  mere  pleasure  of  a  prisoner,  who,  if  he 
feels  that  he  must  fall,  would  pant  for  nothing  more 
anxiously  than  "  to  grace  his  fall  and  make  his  ruin  glor- 
ious," by  dragging  down  with  him  the  bright  and 


MOTION    TO    PRODUCE    PAPERS.          123 

i 

splendid  edifice  of  the  government?  Sir,  if  Aaron  Burr 
has  the  right,  at  his  mere  wish,  to  call  one  paper  from 
the  government,  he  has  the  same  right  to  call  any  other; 
and  so,  one  after  another,  might  divulge  and  proclaim 
to  the  world  every  document  and  secret  of  state,  how- 
ever delicate  our  foreign  relations  might  be,  and  however 
ruinous  the  disclosure  to  the  honor  and  prosperity  of  the 
country.  These,  sir,  are  topics  offered  to  the  discretion 
of  the  court. 

It  is  certainly  much  to  be  wished,  that  a  rule  could 
be  devised,  which,  while  it  should  protect  the  rights  of 
the  prisoner,  should  also  protect  the  public  offices  from 
being  wantonly  and  unnecessarily  violated.  I  think 
there  is  such  a  rule.  It  is  this  ;  it  is  by  requiring  that 
the  prisoner  who  calls  for  a  paper,  should  show  that  the 
paper  applies  to  his  case,  and  is  requisite  for  his  defense. 
When  he  shall  have  done  this,  I  hold  that  he  will  be 
entitled  to  call  for  any  paper.  It  will  then  rest  with  the 
president  of  the  United  States,  the  officer  appointed  by 
the  people  to  watch  over  the  Rational  safety,  to  say 
whether  that  safety  will  be  endangered  by  divulging  the 
paper.  Surely,  sir,  justice  to  the  prisoner  requires  no 
more  than  that  he  should  possess  such  papers  as  are 
material  for  his  defense ;  and  will  not  the  court  require 
that  he  should  show  that  materiality,  before  they  give 
way  to  his  call  ?  If  they  do  it,  if  they  say  that  it  is 
enough  for  the  prisoner  to  wish  a  paper,  to  have  it,  they 
put  themselves,  as  well  as  the  chief  magistrate  of  the 
Union,  in  danger  of  becoming  the  mere  ministers  of  the 
prisoner's  whim,  or  malice  and  resentment;'  but  by 
adopting  the  rule  which  I  have  proposed,  they  would 
avoid  these  consequences  and  do  all  that  justice  requires 
for  the  prisoner. 

When  the  subject  was  first  mentioned,  it  was  said  by 
one  of  your  honors,  that  it  is  usual  to  award  the  subpoena 
duces  tecum  on  the  mere  motion  of  the  party,  unsup- 
ported by  any  affidavit  as  to  the  purpose  for  which  the 
paper  was  required.  This  is  true,  sir  ;  such  an  affidavit 
is  not  generally  required  ;  but  why  is  it  not  ?  Because 
the  relevancy  and  materiality  of  the  paper  are  admitted 
by  the  adverse  counsel,  or  are  palpable  from  the  nature 
of  the  issue,  and  of  the  paper  required.  The  docket,  for 


124  TRIAL     OF    AARON    BURR. 

would  it  be  proper  to  divulge  and  proclaim  it  even  to 
Spain  herself?  If  the  letter  contains  such  a  thing,  I 
have  no  doubt  that  the  president  ought  and  will  conceal 
at  least  so  much  of  it.  This,  however,  will  be  a  question 
with  him,  when  the  paper  shall  be  called  for,  and  a 
question  which  he  alone  is  competent  to  decide. 

From  what  has  been  said,  I  take  it  to  be  clear  that  the 
relevancy  and  materiality  of  these  papers  for  the  pris- 
oner's defense  are  not  palpable,  by  comparing  the  nature 
of  the  papers  with  the  nature  of  the  issues  ;  and  being 
neither  self-evident  nor  admitted,  I  hold  that  the  party  is 
bound  to  show,  at  least  by  his  affidavit,  wherein  they 
are  relevant  and  material.  This  he  has  not  pretended 
to  do  in  the  affidavit  offered  to  the  court ;  for  in  that,  he 
has  merely  stated,  in  terms  the  most  loose  arid  vague, 
that  he  believes  these  papers  may  be  material  for  his  de- 
fense. Sir,  he  might  take  the  same  oath  as  to  any  paper 
in  the  offices  of  state,  without  the  possibility  of  proving 
him  forsworn  ;  for  he  swears  merely  to  a  conjecture,  and 
whether  he  entertains  it  or  not,  can  never  be  decisively 
known  to  any  one  but*  himself.  Will  you  lay  open  the 
public  offices  to  be  ransacked  by  conjectural  affidavits  ? 
Will  you  adopt  a  precedent  which  will  put  it  in  the 
power  of  the  enemies  of  the  government  at  any  time, 
and  without  the  hazard  of  punishment,  to  explore  your 
offices  with  the  worst  of  views,  and  harass  the  officers 
themselves  at  their  discretion  ?  Sir,  I  wish  the  prisoner 
to  have  a  fair  trial.  I  wish  him  to  possess  every  atom 
of  evidence  which  can  contribute  to  his  acquittal,  but 
these  papers  appear  to  me  not  calculated  to  touch  the 
issue,  and  still  less  calculated  to  do  the  prisoner  any 
good.  If  he  thinks  otherwise,  where  can  be  the  diffi- 
culty of  his  showing,  by  an  affidavit  at  least,  some  prob- 
ability of  their  doing  him  service.  If  he  knows  the 
nature  of  these  orders  and  that  letter  so  well  as  to  have 
ascertained  to  his  own  satisfaction,  that  they  may  do  him 
service,  where  can  be  the  harm  of  his  setting  out  in  his 
affidavit  the  character  of  the  papers,  and  showing  how 
they  may  be  brought  to  bear  upon  his  case  ?  When  he 
shall  have  done  so,  the  court  will  have  something  for  its 
discretion  to  act  upon  ;  at  present  they  have  nothing 
but  the  prisoner's  faint  conjecture,  and  the  discretion 


MOTION     TO    PRODUCE    PAPERS.         125 

example,  presents  the  case  of  a  writ  of  right,  or  an  action 
of  ejectment;  the  name  of  the  action  shows  that  the 
title  of  land  is  in  question.  One  of  the  parties  moves 
for  a  subpoena  duces  tecum  directed  to  the  clerk  of 
another  court,  and  requiring  him  to  bring  up  a  deed  or 
a  will  which  forms  a  link  in  the  claim  of  his  title.  The 
adverse  counsel,  if  he  be  present,  admits  by  his  silence 
the  propriety  of  the  motion  ;  or.  if  his  silence  has  not 
that  effect,  the  nature  of  the  issue  and  of  the  paper 
required,  show  et  once  the  relevancy  and  materiality  of 
the  latter.  Hence  it  has  happened  that  these  motions 
are  usually  unsupported  by  affidavit.  But  is  this  the  case 
here  ?  The  relevancy  and  materiality  of  the  papers 
called  for,  are  not  admitted  by  us :  are  that  relevancy 
and  materiality  palpable  from  the  nature  of  the  points 
in  issue  and  the  papers  required  ?  Let  us  see  if  they 
be.  The  two  charges  against  the  prisoner  are,  first,  of 
high  treason  ;  and  second,  misdemeanor,  in  setting  on 
foot  an  expedition  against  the  territories  of  a  nation 
with  whom  we  are  at  peace.  For  the  purpose  of  his 
defense,  he  says  he  wants  a  letter  from  General  Wilkin- 
son to  the  president ;  which  letter  contains  a  declaration 
of  his  guilt ;  and  also  certain  orders  from  the  department 
of  war,  which,  he  says,  directed  the  burning  and  de- 
struction of  himself,  his  people,  and  his  property.  Now, 
sir,  what  possible  tendency  can  either  of  these  papers 
have  to  acquit  the  prisoner  of  the  treason  or  the  misde- 
meanor? As  to  the  orders  which  have  been  depicted  as 
being  so  sanguinary  and  despotic,  I  affirm,  with  the 
power  of  proof  to  support  me,  that  such  orders  never 
were  given  ;  though,  if  it  be  true,  that  Aaron  Burr  had 
placed  himself  in  a  state  of  war  with  his  country ;  was 
aiming  a  blow  at  the  vitals  of  our  government  and 
liberty,  and  that  blow  could  be  averted  in  no  other  way, 
I  hold  that  his  destruction  would  have  been  a  virtue  ; 
a  great  and  glorious  virtue.  Affairs,  however,  had  not 
reached  that  desperate  crisis.  We  have  seen  the  orders, 
sir,  and  at  a  proper  time  will  produce  them.  The  very 
orders  to  Lieutenant  Shaw,  which  the  prisoner  has  so 
often  mentioned,  as  having  been  published  in  The  Nat- 
chez Gazette ;  those  orders  are  not  as  he  has  described 
them  ;  they  are  simply  orders  to  apprehend  Aaron  Burr 


i26  TRIAL     OF    AARON    BURR. 

and  if  it  shall  become  necessary  for  that  purpose,  to  de- 
stroy his  boats.  Those  are  the  bloody  orders  which  have 
been  so  often  mentioned  with  looks  of  such  tragic  and 
mysterious  import !  Suppose  the  orders  were  as  bar- 
barous as  he  has  described  them,  and  that  the  emer- 
gency did  not  justify  them,  they  prove  the  administra- 
tion wrong;  but  do  they  prove,  or  tend  to  prove,  Aaron 
Burr  innocent  ?  If  the  president  were  on  his  trial  for 
having  issued  these  orders,  it  would  be  necessary  to  hear 
the  orders  themselves,  in  order  to  ascertain  their  merits 
or  demerits.  But  the  question  is  not  now  as  to  the 
guilt  or  innocence  of  the  president ;  it  is  as  to  the  guilt 
or  innocence  of  Aaron  Burr  on  the  charges  of  treason 
and  misdemeanor;  and  whether  the  president  has 
acted  right  or  wrong,  does  not,-  and  can  not  affect  the 
question  of  Burr's  guilt  or  innocence.  The  charges 
against  him  are  to  be  proved  by  witnesses  on  behalf  of 
the  United  States.  If  these  witnesses  do  not  prove  the 
charges,  there  is  an  end  of  the  inquiry:  but  if  they  do,  I 
ask  whether  it  be  possible  that  his  production  of  the  presi- 
dent's orders,  even  in  his  own  terms,  will  remove  that  evi 
dence  of  his  guilt  ?  Every  judgment  must  answer  No 
and  if  so,  the  orders  are  clearly  immaterial  for  his  defense. 
But  although  the  affidavit  does  not  attempt  to  show 
wherein  these  orders  are  material  for  the  prisoner's 
defense,  Mr.  Martin  has  attempted  to  supply  this  omis- 
sion by  his  argument.  It  seems  these  orders  were  so  law- 
less, that  Burr  had  a  right  to  resist  them  ;  and  whatever 
he  has  done  has  been  in  self-defense  against  these  orders. 
It  would  be  easy,  sir,  to  expose  the  flimsiness  and  fallacy 
of  this  pretext  by  a  reference  to  dates.  The  man  can  not 
have  a  very  chronological  head  who  can  impute  crimes 
throughout  1805,  1 806,  to  orders  issued  in  the  last  month 
of  the  last  year,  or  the  beginning  of  1807  :  but  without 
stopping  to  analyze  more  minutely  this  strange  an- 
achronism, let  us  inquire  into  this  doctrine  of  resistance 
which  Mr.  Martin  has  advocated.  I  am  not  an  advocate 
for  passive  obedience  and  non-resistance.  I  do  not  think, 
as  Mr.  Martin  has  asked,  that  a  man  becomes  a  god  when 
he  becomes  a  president.  I  think  he  does  not  become  a 
god  even  by  becoming  a  king  or  an  emperor.  On  the 
contrary,  I  think  that  a  man  who,  in  a  government  like 


MOTION     TO    PRODUCE    PAPERS.         127 

ours,  even  aspires  to  become  one,  approaches,  in  point  of 
character,  a  class  of  beings  very  opposite  to  gods.  But 
ascending  again  to  our  president ;  he  is  bound  by  his 
oath  of  office  to  take  care  that  the  laws  shall  be  carried 
into  effect.  By  the  particular  act  of  congress  which  pre- 
scribes the  punishment  of  misdemeanor  charged  on  the 
prisoner,  the  president  is  authorized  and  required  to  call 
the  naval  and  military  force  of  the  country  to  defeat  the 
enterprise.  In  the  present  instance  he  has  done  so,  and 
given  orders  for  the  apprehension  of  the  offender  ;  and 
we  are  told  that  Aaron  Burr,  instead  of  submitting  him- 
self to  the  laws  and  justice  of  his  country,  had  a  right  to 
resist  these  orders  ;  that  Aaron  Burr  was  to  be  the  judge, 
whether  he  should  obey  or  not,  orders  proceeding  from 
the  lawfully  constituted  authorities  of  his  country  ;  and 
that  if  he  thought  them  unlawful,  he  had  a  right  to  re- 
sist them  by  force.  If  this  be  so,  there  is  an  end  of  gov- 
ernment. Every  individual  in  the  country,  I  presume, 
has,  at  least,  the  same  rights  with  Aaron  Burr;  and  if  he 
has  this  right  of  submitting  to,  or  resisting  the  laws  and 
officers  of  the  governwent,  as  he  pleases,  everybody  else 
has  the  same  right ;  then  where  is  the  use  of  our  consti- 
tution, laws,  or  officers?  We  might  as  well  abolish  them 
all,  and  return  to  a  state  of  nature.  But,  sir,  neither 
Aaron  Burr  nor  any  other  individual  carries  about  him 
this  dispensing  power,  It  is  clear  that  the  very  act  of 
resistance  of  which  Mr.  Martin  has  spoken,  was  itself  an 
act  of  treason.  Before  the  orders  can  be  material  for  his 
defense,  on  this  ground,  it  must  be  determined  that  he  had 
the  right  of  resistance  ;  but,  as  I  presume  it  to  be  impos- 
sible, that  the  court  can  entertain  this  latter  opinion,  I 
conclude,  that  the  orders  in  question, can  not  be  relevant 
or  material  to  his  defense  in  this  light ;  and  no  other  has 
been  presented,  or  I  believe  can  be  presented.  Let  us 
now  consider  the  letter  from  General  Wilkinson  to  the 
president,  and  inquire  how  that  touches  either  of  the 
issues  in  which  the  prisoner  is  involved,  and  now  the  pro- 
duction of  the  original  letter  is  to  operate  to  his  benefit. 
If  the  letter  be  material  at  all,  a  copy  will  answer  every 
purpose.  The  letter,  I  presume,  from  the  use  made  of 
it  by  the  president,  is  a  public  document,  and  is  lodged  in 
the  department  of  state.  The  law  of  the  United  States 


1*8  TRIAL    OF    AARON    BURR. 

which  establishes  this  office,  contains  the  following 
clause : 

"  And  be  it  further  enacted,  that  the  said  secretary 
shall  cause  a  seal  of  office  to  be  made  for  the  said 
department  of  such  device  as  the  president  of  the 
United  States  shall  approve,  and  all  copies  of  records 
and  papers  in  the  said  office,  authenticated  under  the 
said  seal,  shall  be  evidence  equally  as  the  original  record 
or  paper."  (i  Laws  U.  S.  Chap.  xiv.  p.  5.) 

Hence  a  copy  of  this  letter  will  answer  every  purpose 
of  the  original ;  and  it  will  be  no  more  competent  to 
General  Wilkinson  to  deny  the  authenticated  copy  than 
the  original.  But  let  us  see  of  what  use  a  copy  of  this 
letter  can  be  to  him  ?  We  know  nothing  of  this  letter 
except  from  the  message  of  the  president,  to  which  the 
counsel  on  the  other  side  have  referred  us ;  and  by  this 
message  it  appears,  that  it  was  from  this  letter,  connected 
with  others,  that  the  president  inferred  the  prisoner's 
guilt ;  a  letter  then,  which  according  to  the  only-account 
we  have  of  it,  contributes  to  establish  the  prisoner's 
guilt,  is  required  for  the  purpose  of  proving  his  inno- 
cence !  But  this  letter  we  learn,  not  from  the  affidavit, 
but  from  argument,  is  required  for  the  purpose  of  con- 
fronting General  Wilkinson,  if  he  should  trip  in  his  evi- 
dence. At  present,  then,  there  is  confessedly  no  issue 
to  which  this  letter  applies ;  but  one  may  possibly  occur 
by  General  Wilkinson's  departing  in  his  narrative  from 
the  statements  of  his  letter.  Now,  sir,  suppose  a  man 
should  move  you  for  a  subpana  duces  tecum  in  a  civil 
question,  stating,  indeed,  that  there  was  at  present  no 
suit  to  which  the  paper  could  apply,  but  that  he  appre- 
hended one  might  be  brought,  in  which  it  might  be 
material,  would  his  motion  be  granted  ?  Now  where  is 
the  difference  between  such  a  motion,  and  the  very  re- 
mote probability  that  General  Wilkinson  will  produce  an 
occasion  for  this  letter,  in  contradicting  by  his  parol 
testimony  the  statement  of  his  letter?  But  let  us  press 
this  point  a  little  further.  No  one  pretends  to  know 
anything  of  the  details  of  this  letter ;  all  we  know  of  it 
is  derived  from  the  president's  message  ;  and  from  that  all 
we  learn  of  it  is  its  general  character,  that  it  goes  to 
prove  the  guilt  of  Burr.  Now,  in  order  to  produce  any 


MOTION     TO    PRODUCE    PAPERS.         129 

collision  between  this  letter  and  Wilkinson's  parol  evi- 
dence, the  letter  must  have  an  opposite  character ;  that 
is,  it  must  go  to  show  the  innocence  of  Burr.  If  Wil- 
kinson continues  to  avow  the  guilt  of  Burr,  there  will  be 
no  contradiction  between  his  testimony  and  his  letter, ' 
and  consequently  there  can  be  no  confrontation  between 
them,  beneficial  to  the  prisoner  ;  there  can  be  a  confron- 
tation in  no  other  event,  than  that  of  his  deposing  to 
Burr's  innocence.  The  result  of  the  argument  is,  that 
Burr,  apprehensive  that  the  evidence  of  General  Wilkin- 
son may  be  favorable  to  him,  wishes  the  general's  letter 
for  the  purpose  of  destroying  that  evidence,  and  prov- 
ing his  own  guilt.  Again,  sir,  I  have  never  seen  or 
heard  of  an  instance  of  this  process  being  required  to 
bring  forward  any  paper,  but  where  such  a  paper  was  in 
its  nature  evidence,  for  which  either  party  has  an  equal 
right  to  call,  and  to  use  it  when  produced.  But  it  is  ob- 
vious that  in  this  case  and  in  the  present  state  of  things, 
we  could  not  use  the  letter  of  General  Wilkinson  as 
evidence  ;  although  the  opposite  party  should  obtain  his 
subpana  duces  tecum  for  this  paper,  and  would  seem 
thereby  to  have  made  it  evidence,  and  introduced  it  into 
the  cause.  Yet  after  it  comes  we  can  not  use  it :  hence 
there  is  no  reciprocity  in  it.  The  paper  is  not,  at 
present,  evidence,  and  therefore  is  not  within  the  princi- 
ple on  which  this  process  is  awarded.  One  more  remark 
on  this  letter,  and  I  have  done  with  it.  I  am  no  more  an 
advocate  for  the  needless  multiplication  of  state  secrets, 
than  the  gentleman  who  has  preceded  me.  It  looks  too 
much  like  the  mysteries  of  monarchy  ;  and  I.  hate  mon- 
archy with  all  its  mysteries,  as  I  do  the  mysterious 
movements  of  those  who  are  lovers  of  monarchy.  Yet 
it  is  obvious,  that  there  may  be  cases  in  which  the  very 
safety  of  the  state  may  depend  on  concealing  the  views 
and  operations  of  the  government.  I  will  instance  in 
this  very  letter.  I  do  not  know  what  it  contains  ;  but  it 
is  from  the  general  who  commands  on  the  Spanish 
frontier.  That  the  state  of  our  affairs  was  and  is  with 
Spain,  not  the  most  amicable,  is  well  understood.  We 
know  that  our  affairs  in  that  quarter  wear,  even  at  this 
time,  the  most  lowering  aspect.  Suppose  this  letter 
should  contain  a  scheme  of  war,  a  project  of  attack, 
i.— 9 


13o  TRIAL     OF    AARON    BURR. 

would  appear  to  me  not  very  sound  which  would  be  de- 
termined by  a  consideration  like  that. 

I  can  see  but  one  possible  objection  to  the  particular 
affidavit  which  I  require,  which  is,  that  the  prisoner 
would  thereby  unmask  his  defense.  But  in  the  case  of 
the  United  States  against  Smith,  a  particular  affidavit 
was  required  by  Judge  PATTERSON,  setting  out  what 
it  was  expected  to  prove  by  the  witnesses  ;  and  although 
it  was  objected  in  that  case  that  by  demanding  such  an 
affidavit  he  compelled  the  accused  to  unmask  his  de- 
dense,  he  nevertheless  demanded  the  affidavit.  And  in 
that  case,  as  in  this,  although  the  materiality  of  the  evi- 
dence was  supported  by  some  of  the  ablest  advocates  on 
the  continent,  the  court  determined  against  its  materi- 
ality, and  the  cause  went  on  without  it;  but  in  the 
present  instance,  an  objection  as  to  unmasking  the  de- 
fense would  be  an  objection  merely  of  form,  because  the 
gentlemen  have  by  their  arguments,  in  fact,  taken  off 
the  mask,  and  stated  the  manner  in  which  they  expect 
this  evidence  to  apply.  We  have  examined  their  expec- 
tations, and  I  hope  found  them  baseless. 

I  conclude,  sir,  that  this  is  an  application  to  the  dis- 
cretion of  the  court ;  that  justice  to  the  prisoner  required 
only  that  he  should  have  all  papers  from  the  officers  of 
state  which  he  shall  show  to  be  material  and  relevant  to 
his  defense  ;  that  he  has  not  shown  them  to  be  so  in 
this  case ;  and  that,  therefore,  the  process  should  be 
withheld  until  he  does  show  them  to  be  so.  I  know  of 
no  other  rule,  which,  while  it  protects  the  rights  of  the 
prisoner,  will  also  save  the  offices  from  needless,  wanton, 
and  wicked  violations. 

I  can  not  take  my  seat,  sir,  without  expressing  my 
deep  and  sincere  sorrow  at  the  policy  which  the  gentle- 
men in  the  defense  have  thought  it  necessary  to  adopt. 
As  to  Mr.  Martin,  I  should  have  been  willing  to  impute 
this  fervid  language  to  the  sympathies  and  resentments 
of  that  friendship  which  he  has  taken  such  frequent  oc- 
casions to  express  for  the  prisoner,  his  honorable  friend. 
In  the  cause  of  friendship  I  can  pardon  zeal  even  up  to 
the  point  of  intemperance  ;  but  the  truth  is,  sir,  that  be- 
fore Mr.  Martin  came  to  Richmond,  this  policy  was 
settled,  and  on  every  question  incidentally  brought  be- 


MOTION     TO    PRODUCE    PAPERS.         131 

fore  the  court,  we  were  stunned  with  invectives  against 
the  administration.  I  appeal  to  your  recollection,  sir. 
whether  this  policy  was  not  manifested  even  so  early  as 
in  those  new,  and  until  now,  unheard  of  challenges  to 
the  grand  jury  for  favor?  Whether  that  policy  was  not 
followed  up  with  increased  spirit,  in  the  very  first 
speeches  which  were  made  in  this  case  ;  those  of  Mr. 
Botts  and  Mr.  Wickham  on  their  previous  question 
pending  the  attorney's  motion  to  commit?  Whether 
they  have  not  seized  with  avidity  every  subsequent  oc- 
casion, and  on  every  mere  question  of  abstract  law  before 
the  court,  flew  off  a  tangent  from  the  subject,  to  launch 
into  declamations  against  the  government?  Exhibiting 
the  prisoner  continually  as  a  persecuted  patriot :  a  Rus- 
sell or  a  Sidney,  bleeding  under  the  scourge  of  a  despot, 
and  dying  for  virtue's  sake  !  If  there  be  any  truth  in 
the  charges  against  him,  how  different  were  the  purposes 
of  his  soul  from  those  of  a  Russell  or  a  Sidney  !  I  beg 
to  know  what  gentlemen  can  'intend,  expect,  or  hope, 
from  these  perpetual  philippics  against  the  government? 
Do  they  flatter  themselves  that  this  court  feel  political 
prejudices  which  will  supply  the  place  of  argument  and 
innocence  on  the  part  of  the  prisoner?  Their  conduct 
amounts  to  an  insinuation  of  the  sort.  But  I  do  not 
believe  it.  On  the  contrary,  I  feel  the  firm  and  pleasing 
assurance,  that  as  to  the  court,  the  beam  of  their  judg- 
ment will  remain  steady,  although  the  earth  itself  should 
shake  under  the  concussion  of  prejudice.  Or  is  it  on 
the  bystanders  that  the  gentlemen  expect  to  make  a 
favorable  impression  ?  And  do  they  use  the  court- 
merely  as  a  canal,  through  which  they  may  pour  upon 
the  world  their  undeserved  invectives  against  the  gov- 
ernment ?  Do  they  wish  to  divide  the  popular  resent- 
ment, and  diminish  thereby  their  own  quota?  Before 
the  gentlemen  arraign  the  administration,  let  them  clear 
the  skirts  of  their  client.  Let  them  prove  his  innocence ; 
let  them  prove  that  he  has  not  covered  himself  with  the 
clouds  of  mystery  and  just  suspicion;  let  them  prove 
that  he  has  been  all  along  erect  and  fair,  in  open  day, 
and  that  these  charges  against  him  are  totally  groundless 
and  false.  That  will  be  the  most  eloquent  invective 
which  they  can  pronounce  against  the  prosecution  ;  but 


132         .        TRIAL    OF    AARON    BURR. 

until  they  prove  this  innocence,  it  shall  be  in  vain  that 
they  attempt  to  divert  our  minds  to  other  objects,  and 
other  inquiries.  We  will  keep  our  eyes  on  Aaron  Burr 
until  he  satisfies  our  utmost  scruple.  I  beg  to  know, 
sir,  if  the  course  which  gentlemen  pursue  is  not  disre- 
spectful to  the  court  itself?  Suppose  there  are  any  for- 
eigners here  accustomed  to  regular  government  in  their 
own  country,  what  can  they  infer  from  hearing  the  fed- 
eral administration  thus  reviled  to  the  federal  judiciary? 
Hearing  the  judiciary  told  that  the  administration  are 
"  blood  hounds,  hunting  this  man  with  a  keen  and  savage 
thirst  for  blood ;  that  they  now  suppose  they  have 
hunted  him  into  their  toils  and  have  him  safe."  Sir,  no 
man,  foreigner  or  citizen,  who  hears  this  language  ad- 
dressed to  the  court,  and  received  with  all  the  complac- 
ency at  least  which  silence  can  imply,  can  make  any 
inferences  from  it  very  honorable  to  the  court.  It  would 
only  be  inferred,  while  they  are  thus  suffered  to  roll  and 
luxuriate  in  these  gross  invectives  against  the  adminis- 
tration, that  they  are  furnishing  the  joys  of  a  Mahometan 
paradise  to  the  court  as  well  as  to  their  client.  I  hope 
that  the  court,  for  their  own  sakes,  will  compel  a  decent 
respect  to  that  government  of  which  they  themselves 
form  a  branch.  On  our  part,  we  wish  only  a  fair  trial 
of  this  case.  If  the  man  be  innocent,  in  the  name  of 
God  let  him  go  ;  but  while  we  are  on  the  question  of  his 
guilt  or  innocence,  let  us  not  suffer  our  attention  and 
judgment  to  be  diverted  and  distracted  by  the  introduc- 
tion of  other  subjects  foreign  to  the  inquiry. 

Mr.  Wickham  appealed  to  the  court  if  the  counsel  for 
Mr.  Burr  had  been  the  first  who  began  the  attack  ;  and 
wished  the  gentleman  to  follow  his  own  wise  maxims. 
He  observed,  that  Mr.  Wirt  had  met  the  question  fairly, 
and  conceded  several  points  which  had  been  contended 
for  by  his  associates.  He  admitted  the  granting  a  writ 
of  "  subpoena  duces  tecum  "  to  be  a  matter  of  discretion  ; 
but  insisted,  that  the  opinion  of  the  party  applying  for 
it,  that  the  papers  might  be  material,  was  sufficient.  He 
said  that  the  question  in  the  case  of  the  United  States  v. 
Smith,  arose  on  a  motion  for  a  continuance. 

Mr.  Wirt  corrected  his  statement ;  observing,  that  the 
motion  was  for  a  continuance  and  for  an  attachment 


MOTION     TO    PRODUCE    PAPERS.         133 

against  the  witnesses  at  the  same  time,  and  both  ques- 
tions were  argued  collectively. 

Mr.  Wickhain  agreed  that  such  was  the  case;  but  con- 
tended that  the  special  affidavit  was  required,  because 
there  was  a  motion  for  a  continuance  ;  and  that  on  a 
motion  of  this  kind,  an  affidavit  need  not  be  special.  He 
said,  that  the  reason  given  by  Judge  Patterson,  for  re- 
quiring a  special  statement  of  what  was  intended  to  be 
proved  by  Messrs.  Madison  and  Smith,  was,  that  if  they 
had  been  present,  their  evidence  (if  it  only  went  to  prove 
that  the  president  had  sanctioned  the  expedition)  would 
have  been  of  no  consequence  ;  since  the  president's  sanc- 
tioning the  expedition  could  not  have  rendered  it 
lawful. 

We  are  told,  said  Mr.  Wickham,  that  Wilkinson's  letter 
is  not  important!  Yet  he  is  the  pivot  on  which  this 
prosecution  turns.  Without  his  evidence  they  could  not 
progress  with  the  trial.  When  he  arrives,  it  will  be  all 
important  to  us  to  prove  the  falsehood  of  his  testimony, 
by  proving  that  he  has  contradicted  himself.  His  credi- 
bility Is  the  point  in  question  ;  and  surely  General  Wil- 
kinson is  not  so  immaculate  as  the  government.  We 
may  allude  to  his  tyrannical  and  oppressive  conduct  at 
New  Orleans;  we  may  demonstrate  that  his  feelings,  his 
interests,  his  character,  require  him  to  secure  the  convic- 
tion of  Mr.  Burr.  Under  these  circumstances,  his  ve- 
racity must  be  very  doubtful,  especially  if  we  can  show- 
that  he  has  made  three  or  four  different  and  inconsistent 
representations  of  the  transactions  charged  to  be  treason- 
able. His  letter,  therefore,  ought  to  be  produced. 

As  to  the  inconvenience  to  which  the  public  offices 
may  be  subjected,  it  ought  not  to  be  regarded ;  for  those 
offices  were  made  for  the  good  of  the  people,  not  for  the 
good  of  the  officers.  All  that  Mr.  Burr  is  obliged  to 
show,  is  probable  cause  to  believe  that  Wilkinson's  let- 
ter may  be  material,  though  he  can  not  swear  that  it 
is  material.  Mr.  Wirt  says,  he  is  not  an  advocate  for 
state  secrets;  but  he  is  in  this  case,  without  knowing 
it.  He  has  said,  too,  that  the  acquittal  of  Mr.  Burr  will 
be  a  satire  on  the  government.  I  am  sorry  that  the  gen- 
tleman has  made  this  confession,  that  the  character  of  the 
.government  depends  on  the  guilt  of  Mr.  Burr.  If  I  be- 


134  TRIAL     OF    AARON    BURR. 

lieve  him  to  be  correct,  I  could  easily  explain,  from  that 
circumstance,  the  anxiety  manifested  to  convict  him,  and 
the  prejudices  which  have  been  excited  against  him. 
But  I  will  not  believe  that  this  is  the  case,  but  will  tell 
the  gentleman  that  we  think  Burr  may  be  acquitted,  and 
yet  the  government  may  have  pure  intentions. 

The  writ  of  subpoena  duces  tecum  ought  to  be  issued, 
and  if  there  be  any  state  secrets  to  prevent  the  production 
of  the  letter,  the  president  should  allege  it  in  his  return  ; 
for  at  present  we  can  not  know  that  any  such  secrets 
exist.  And  the  court,  when  his  return  is  before  them, 
can  judge  of  the  cause  assigned.  But  I  have  too  good 
an  opinion  of  the  president  to  think  he  would  withhold 
the  letter. 

The  gentlemen  on  the  other  side  have  said  that  we  do 
not  wish  to  unmask  our  defense  ;  but  in  withholding  the 
papers  which  we  demand,  they  show  that  they  have  on 
the  mask,  and  we  wish  the  court  to  aid  us  in  making  them 
pull  it  off. 

We  contend  that  no  affidavit  on  the  part  of  Mr.  Burr 
is  necessary.  Wilkinson's  affidavit,  already  published, 
together  with  the  president's  communication  to  con- 
gress, prove  that  the  letter  in  question  must  be  material. 
It  may  show  that  the  treasonable  transactions  attrib- 
uted to  Mr.  Burr  within  the  limits  of  this  state,  never 
existed  ;  for,  as  to  Blannerhasset's  Island,  the  gentlemen 
in  the  prosecution  know  that  there  was  no  such  thing  as 
a  military  force  on  that  island. 

[Here  Mr.  Hay  interrupted  him,  and  said  that  it  was 
extremely  indelicate  and  improper  to  accuse  them  of 
voluntarily  supporting  a  cause  which  they  knew  to  be 
unjust.  He  solemnly  denied  the  truth  of  the  charge 
against  him  and  the  gentlemen  who  assisted  him,  and 
declared  that  they  could  prove  the  actual  existence  of  an 
armed  assemblage  of  men  on  Blannerhasset's  Island, 
under  the  command  of  Aaron  Burr.] 

,  Mr.  Wickham  acknowledged  that  he  had  gone  too  far 
in  the  expression  he  had  used,  and  ought  not  to  have 
uttered  what  he  had  said  concerning  the  counsel  for  the 
United  States,  and  declared  that  he  meant  nothing  per- 
sonal against  them.  He  proceeded  to  argue  the  question 
concerning  the  production  of  the  president's  orders.  He 


MOTION     TO    PRODUCE    PAPERS.         135 

denied,  as  Mr.  Martin  had  done  before,  the  legality  oi 
those  orders,  and  contended  that  Mr.  Burr  had  a  right  to 
resist  them.  Mr.  Burr  was  brought  here — how  he  was 
brought  we  will  not  say  ;  but  we  will  say,  that  resistance 
to  the  militia  ordered  out  against  him,  was  resistance  to 
tyranny  and  despotism. 

Mr.  Wickliam  returned  to  the  question  relative  to  Wil- 
kinson's letter.  We  are  told,  he  said,  that  the  letter  is 
in  the  department  of  state,  and  a  copy  will  be  suffi- 
cient. If  the  letter  was  written  to  the  president  of  the 
United  States,  and  not  to  the  secretary  of  any  depart- 
ment, we  may  presume  that  the  president  has  it  in  his 
own  possession.  But  if  a  copy  were  here,  Wilkinson 
might  deny  that  he  ever  wrote  the  letter  ;  and  although 
the  copy  might  be  faithful,  it  could  not  prove  that  the 
letter  was  not  a  forgery.  The  original,  therefore,  will 
alone  answer  our  purpose. 

Mr.  Wirt  lays  down  the  strange  principle  that  Wilkin- 
son's letter  is  not  evidence,  because  it  could  make  only 
in  favor  of  one  side  ;  but  that  it  ought  to  make  in  favor 
of  the  other  side  also.  Give  the  gentleman  his  premises, 
and  his  conclusion  follows.  But  his  premises  are  false; 
for  the  doctrine  can  not  be  sound,  that  nothing  is  evi- 
dence but  that  which  makes  in  favor  of  both  sides  of  a 
question.  Such  reciprocal  effect  is  not  essential  to  the 
admissibility  of  evidence. 

When  Mr.  Wickham  had  finished,  the  chief  justice 
observed  that  although  many  observations  (in  the  course 
of  the  several  discussions  which  had  taken  place)  had 
been  made  by  the  gentlemen  of  the  bar,  in  the  heat  of 
debate,  of  which  the  court  did  not  approve,  yet  the 
court  had  hitherto  avoided  interfering;  but  as  a  pointed 
appeal  had  been  made  to  them  on  this  day  (alluding  to 
the  speech  of  Mr.  Wirt),  and  they  had  been  called  upon 
to  support  their  own  dignity,  by  preventing  the  govern- 
ment from  being  abused,  the  court  thought  it  proper  to 
declare  that  the  gentlemen  on  both  sides  had  acted 
improperly  in  the  style  and  spirit  of  their  remarks :  that 
they  had  been  to  blame  in  endeavoring  to  excite  the 
prejudices  of  the  people  ;  and  had  repeatedly  accused 
each  other  of  doing  what  they  forget  they  have  done 
themselves.  The  court,  therefore,  expressed  a  wish  that 


136  TRIAL     OF    AARON    BURR. 

the  counsel  for  the  United  States  and  for  Mr.  Burr 
would  confine  themselves  on  every  occasion  to  the  point 
really  before  the  court ;  that  their  own  good  sense  and 
regard  for  their  characters  required  them  to  follow  such 
a  course  ;  and  it  was  hoped  that  they  would  not  here- 
after deviate  from  it. 

THURSDAY,  June  nth,  1807. 

Mr.  Hay  addressed  the  court  to  this  effect  :  I  am 
happy  the  court  has  recommended  to  the  counsel  on 
both  sides  to  adhere  more  strictly  to  the  subjects  in 
debate.  Their  admonition  will  be  followed  by  me,  and  I 
wish  they  would  cause  it  to  be  followed  by  others.  I 
regret,  indeed,  that  it  was  not  made  somewhat  sooner. 
Perhaps  if  it  had,  we  might  have  been  spared  the  pain  of 
hearing  many  remarks,  as  unauthorized  in  point  of  prin- 
ciple and  fact  as  they  are  irrelevant ;  remarks,  which,  as 
a  public  prosecutor,  as  a  friend  of  my  country,  and  a 
supporter  of  its  constitution,  government,  and  laws,  I 
heard  with  surprise  and  regret,  and  with  a  sentiment 
which  I  will  not  name.  I  will  not  imitate  this  example 
of  my  opponents,  but  endeavor  to  confine  my  observa- 
tions exclusively  to  the  question  now  in  discussion.  I 
am  really  doubtful,  however,  whether  I  should  not  be 
departing  in  some  degree  from  this  declaration  in  notic- 
ing one  argument  used  by  the  gentleman  who  last  spoke 
(Mr.  Wickham).  Language  so  strange, -a  charge  so  un- 
just, I  hope,  however,  I  may  be  permitted  to  repel. 

The  gentleman,  with  a  tone  of  voice  calculated  to 
excite  irritation,  and  intended  for  the  multitude,  charged 
us  with  conceding  point  after  point  i  He  insinuates 
that  we  have  been  catching  at  everything  to  bear  down 
the  accused  ;  that  we  inconsiderately  contend  for  any 
doctrine,  however  absurd,  which  might  have  the  effect  of 
injuring  him,  and  afterwards  are  obliged  to  abandon  the 
ground  we  have  too  precipitately  taken.  I  will  ask,  if 
any  occurrence  has  shown  that  we  are  actuated  by  this 
spirit  ?  No,  sir.  The  gentleman  knows  the  charge  is 
unjust.  But  even  if  it  had  been  true  that  we  had  made 
concessions,  it  ought  to  have  been  considered  as  a  proof 
of  our  candor  and  liberality,  in  giving  up  ground  as  soon 


MOTION    TO    PRODUCE    PAPERS.        137 

as  we  thought  it  untenable,  and  not  as  a  matter  of 
reproach.  But,  sir,  it  is  not  correct.  We  have  con- 
ceded no  point  that  we  ever  maintained.  We  admitted 
that  the  president  might  be  subpoenaed  as  a  witness, 
because  we  always  thought  so.  We  never  clothed  him 
with  those  attributes  of  dignity  which  gentlemen  have 
accused  us  of  ascribing  to  him.  We  know  the  president 
is  but  a  man,  though  among  the  first  of  men  ;  he  is  but 
a  citizen,  though  the  first  of  citizens.  The  president,  too, 
knows,  that,  like  the  great  Cato,  he  ought  to  pay  obe- 
dience to  the  laws  of  his  country,  and  obey  the  com- 
mands of  its  courts  of  justice.  All  this  we  have  uni- 
formly admitted;  but  have  denied,  and  deny  now, 
that  a  subpoena  duccs  tecum  ought  to  be  issued  to  the 
president. 

Mr.  Hay  morover  observed,  that  the  objection  made 
the  day  before  to  the  prisoner's  right  to  make  the  motion 
in  the  present  stage  of  the  prosecution  was  not  waived; 
and  that  in  opposing  the  motion,  he  was  influenced  solely 
by  a  desire  to  keep  the  accused  and  his  counsel  within 
legal  limits ;  because  he  had  endeavored  to  procure  for 
them  the  very  evidence  they  requested.  He  proceeded 
to  argue  the  question  upon  its  merits. 

It  having  been  admitted,  that  this  was  a  motion  ad- 
dressed only  to  the  discretion  of  the  Court,  it  followed, 
that  it  ought  to  be  granted  only  when  substantial  justice 
required  it ;  that  it  is  to  be  granted  to  a  person  accused, 
because  his  defense  when  properly  conducted  requires  it. 
But  the  accused  himself  in  this  case  does  not  say  these 
papers  are  material  in  his  defense.  His  affidavit  is 
drawn  with  great  caution.  He  only  says  that  the  papers 
may  be  material.  This  is  nothing  more  than  the  mere 
expressing  of  an  opinion,  which  may  be  correct  or  incor- 
rect. Mr.  Hay  asked  the  counsel  for  Mr.  Burr,  and  more 
especially  Mr.  Martin,  if  in  the  course  of  their  long  expe- 
rience they  had  ever  known  such  an  affidavit.  Its 
language  is  unprecedented,  designedly  vague,  and  equiv- 
ocal. The  letter  may  be  material !  This  may  depend  upon 
the  use  intended  to  be  made  of  it.  The  object  of  demand- 
ing it  may  be  to  give  his  counsel  an  opportunity  to  speak 
as  they  have  done  before;  to  charge  the  government 
with  illegal  and  barbarous  persecution,  and  with  endea- 


138       .          TRIAL     OF    AARON    BURR. 

voring  to  crush  and  overwhelm  the  accused.  All  this 
may  be  said,  and  no  doubt  will  be  said,  and  may  be  a 
very  considerable  help  to  Mr.  Burr. 

The  affidavit  is  truly  farcical ;  because  from  anything 
expressed  in  it,  the  letter  of  General  Wilkinson  may,  or 
may  not  be  material.  Suppose  these  words  "  or  may  not " 
had  been  inserted,  would  it  then  have  been  regarded  ? 
The  absurdity  would  then  have  been  too  evident.  And 
is  it  not  the  same  thing  in  substance  as  it  now  stands?  If 
such  an  affidavit  as  this  is  sufficient,  and  mere  curiosity 
is  to  be  indulged,  the  President  might  be  required  to 
produce  all  our  correspondence  with  the  Spaniards  about 
our  disputed  territories ;  in  short,  all  the  papers  of  gov- 
ernment would  be  laid  open  to  the  inspection  of  Burr. 
But  the  Court  ought  not  to  issue  process  on  speculation 
only  ;  it  ought  not  to  subject  the  public  officers  to  incon- 
venience, and  the  national  archives  to  derangement, 
unless  in  a  case  where  justice  plainly  requires  it. 

But  the  affidavit  would  not  have  been  sufficient  if  he 
had  said,  what  he  dared  not  to  say,  that  the  papers  are 
material.  It  should  appear  how  they  are  material.  The 
nature  of  the  evidence  ought  to  be  specially  stated,  that 
the  Court  may  judge  of  it.  Will  the  Court  rely  on  the 
judgment  of  the  party  in  this  case?  Misled  as  he  is  by 
his  feelings,  his  judgment  ought  not  to  be  trusted. 

Even  in  ordinary  cases  the  Court  will  inquire  as  to  the 
contents  of  papers  on  a  motion  for  a  continuance.  Which 
doctrine  is  recognized  in  2  Bl.  Rep.  514.  The  same  thing 
was  done  in  the  case  of  the  United  States  v.  Smith  and 
Ogden,  in  which  almost  as  much  clamor  was  excited  as 
in  this.  There,  the  evidence  of  Mr.  Madison  and  others 
was  sworn  to  be  material ;  but  the  Court  required  a 
specification  of  its  substance,  and  decided  that  it  was  not 
admissible.  The  papers  required  in  the  present  case 
would  probably  be  so  decided  if  they  were  here.  I  have 
a  knowledge  of  the  orders,  and  think  so  with  respect  to 
them.  The  letter  I  know  nothing  about.  Mr.  Wickham's 
argument,  that  the  Court  did  right  in  Smith  and  Ogden's 
case,  because  it  was  prima  facie  presumable  that  the  evi- 
dence would  not  be  admissible,  turns  against  him  here  ; 
for,  certainly,  it  is  prima  facie  presumable  that  General 
Wilkinson's  letter  can  not  make  in  Burr's  favor,  since  the 


MOTION    TO    PRODUCE    PAPERS.-        139 

orders  to  intercept  him  on  his  passage  to  the  seat  of  his 
empire  were  founded  on  the  information  received  from 
that  letter. 

The  conduct  of  the  gentlemen  proves  that  they  feel  us 
to  be  right.  Their  involuntary  conviction  of  this  is 
evinced  by  their  endeavoring  to  supply  the  defect  in  the 
affidavit,  and  to  specify  the  purposes  for  which  the 
papers  are  wanted.  The  accused  has  not  ventured  to 
swear  that  they  are  material,  but  they  assert  it,  and 
attempt  to  show  it  by  argument. 

First,  as  to  the  letter.  Mr.  Wickham  says  that  Wilkin- 
son has  written  other  letters  to  other  persons  differing 
from  this.  We  deny  the  fact.  If  it  be  true,  why  is  it  not 
sworn  to  ?  But  suppose  General  Wilkinson  had  done  so, 
what  is  the  inference?  Is  his  evidence  before  the  jury  not 
to  be  regarded?  It  is  strange  indeed  that  the  gentlemen 
say  they  have  never  seen  this  letter,  and  only  guess  at  its 
contents,  yet  say,  that  letters  containing  different  state- 
ments have  been  written !  Surely  such  efforts  as  these  are 
deplorable  ;  for,  whether  the  assertion  be  true  or  not,  it 
is  not  known  to  be  true. 

They  next  contend  that  the  orders  are  material  because 
they  were  illegal,  arbitrary,  unconstitutional,  oppressive, 
and  unjust ;  that  Burr's  acts  were  merely  acts  of  self- 
defense  against  tyranny  and  usurpation,  and,  of  course, 
were  justifiable. 

Many  strange  positions  have  been  laid  down,  but  this 
is  monstrous.  Mr.  Martin  will  excuse  me  for  saying  that 
I  expected  sounder  doctrine  from  his  age  and  experience. 
These  principles  were  not  learnt  by  him  in  Maryland,  nor 
are  they  the  doctrines  of  this  place.  Considering  that 
he  has  come  all  the  way  from  Maryland  to  enlighten  us 
of  the  Virginia  bar  by  his  great  talents  and  erudition,  I 
hoped  he  would  not  have  advanced  a  doctrine  which 
would  have  been  abhorred  even  in  the  most  turbulent 
period  of  the  French  revolution,  by  the  Jacobins  of  1794! 
It  is  the  duty  of  the  president  to  call  out  the  militia  to 
suppress  combinations  against  the  laws  (see  L.  U.  S.  vol. 
3,  page  189^,  and  particularly  to  prevent  enterprises 
against  foreign  nations  in  amity  with  the  United  States 
(ib.  page  92).  Yet  it  is  contended  that  his  orders  for  such 
purposes  are  illegal,  and  may  be  resisted  by  force  of  arms! 


140  TRIAL     OF    AARON    BURR. 

I  will  not  say  it  is  treason  to  advance,  or  a  misdemeanor 
to  believe  such  doctrines ;  but  deplorable  is  the  cause 
which  depends  on  such  means  for  support.  Suppose 
however,  the  president  was  misled,  and  that  Mr.  Burr  was 
peaceably  engaged  in  the  project  of  settling  his  Washita 
lands  ;  will  it  be  contended  that  he  had  a  right  to  resist 
the  president's  orders  to  stop  him  ?  I  say  this  would  be 
treason.  If  congress  were  to  pass  an  arbitrary  or  oppres- 
sive act,  but  not  unconstitutional  (such  as  the  excise  law, 
for  example),  it  has  been  decided,  that  an  armed  combin- 
ation to  resist  it  would  be  treason.  Of  course,  resistance 
to  the  execution  of  the  statute,  under  which  the  president 
was  acting,  would  be  treason.  The  president  receives 
information  that  a  law  of  the  United  States  is  about  to 
be  violated  ;  he  issues  orders  to  enforce  the  law  in  the 
way  prescribed  by  itself.  Is  not  opposition  by  violence 
reason?  Will  the  gentlemen,  after  seriously  reflecting, 
still  contend  that  Burr  had  a  right  to  resist  ?  This  doc- 
trine is  not  the  growth  of  this  country,  nor  is  it  the 
doctrine  of  the  real  friends  of  human  liberty  ;  but  this 
is  a  new-born  zeal  of  some  of  the  gentlemen,  in  defense 
of  the  rights  of  man.  No  wonder,  therefore,  they  are 
not  so  well  acquainted  with  the  subject  as  those  who  have 
always  contended,  and  always  will  contend,  for  them. 
But  admit  their  inference  correct ;  that  Burr  had  a  right 
to  resist  an  illegal  order  (which  I  utterly  deny),  will  the 
court  issue  a  subpoena  founded  on  that  supposition? 
Will  you  insult  the  executive  by  saying,  that  its  orders 
were  illegal,  and  ought  on  that  account  to  be  produced 
as  evidence?  especially  after  you  have  yourself  said,  that 
there  was  probable  cause  for  committing  Mr.  Burr  on  the 
charge  of  a" misdemeanor? 

Mr.  Hay  proceeded  to  argue  another  point,  that  the 
court  ought  not  only  to  be  satisfied  that  the  letter  was 
material,  but  that  it  was  a  public  paper.  He  said,  if  it  was 
a  public  document,  the  right  to  a  copy  of  it  was  admitted, 
unless  there  should  be  something  in  it,  which,  in  the 
opinion  of  the  president,  the  public  good  forbade  to  be 
disclosed.  But  he  denied  that  the  letter  was  a  public 
paper  merely  because  addressed  to  the  president  of  the 
United  States.  It  had  been  observed  that  the  president 
had  made  it  so  by  referring  to  it  in  his  message  to  con- 


MOTION    TO    PRODUCE    PAPERS.         141 

gress.  If  this  argument  is  correct,  only  so  much  is  public 
as  is  referred  to.  [Here  Mr.  Hay  read  a  part  of  the 
president's  communication  to  congress.]  He  contended, 
that  there  might  have  been  a  great  deal  more  in  that  let- 
ter than  what  related  to  the  discovery  of  Burr's  plans  ; 
that  there  might  have  been  information  of  a  private 
nature,  accounts  of  the  disposition  of  the  people  in  the 
western  country  towards  the  government,  and  General 
Wilkinson's  thoughts  on  many  important  subjects.  Will 
the  court  say,  that  all  these  things  shall  be  made  known? 
If  a  copy  was  received,  such  parts  only  could  be  extracted 
as  ought  to  be  made  public  ;  but  if  the  original  should  be 
granted,  the  whole  would  be  seen  and  inspected  by  the 
court,  by  the  counsel  on  both  sides,  and  by  the  public. 
He  said,  that  the  court  ought  also  to  be  satisfied,  that 
the  president  has  the  custody  of  this  letter.  The  subpoena 
ought  to  be  addressed  to  the  person  who  has  it  in  his 
custody.  It  is  said  to  b^  a  public  document  ;  if  so,  it  is 
in  the  office  of  the  secretary  of  state  (see  L.  U.  S.  vol.  I, 

p.  42,  43)- 

It  is  absurd,  then,  as  well  as  indecorous,  to  summon  the 
president  of  the  United  States  to  bring  a  paper  which  he 
has  not.  The  same  observations  applied  to  the  copies  of 
orders.  The  original  orders  were  lodged  with  the  secre- 
tary of  state,  and  copies  were  sent  by  him  to  the  secreta- 
ries of  war  and  of  the  navy.  To  the  secretary  of  state, 
therefore,  the  subpoena  ought  to  be  issued,  if  at  all. 

The  court  ought  also  to  be  satisfied  that  the  party 
could  not  obtain,  without  a  motion,  the  copies  of  the 
orders  now  required.  The  accused  ought,  therefore,  to 
show  that  he  has  demanded  copies :  but  he  has  not  done 
so.  He  asked,  indeed,  a  copy  from  the  secretary  of  the 
navy ;  and  because  he  refused,  process  is  to  be  issued 
against  the  president  of  the  United  States,  though  he  was 
never  applied  to  ! 

The  Chief  Justice  asked  Mr.  Hay,  what  was  the  legal 
way  of  getting  the  paper  which  the  secretary  of  the  navy 
refused.  He  answered,  "  by  application  to  the  secretary 
of  state  for  copies." 

Mr.  Hay  made  many  other  observations,  which  the 
limits  of  this  sketch  will  not  permit  us  to  insert.  In 
opposition  to  the  argument  that  General  Wilkinson  might 


142  TRIAL     OF    AARON    BURR. 

deny  any  recollection  of  his  letter  if  a  copy  only  was 
produced,  he  said  it  was  mere  presumption,  a  preposterous 
supposition ;  that  it  would  be  immaterial  whether  he 
denied  it  or  not,  since  the  copy  is  evidence  by  the  act  of 
congress.  He  here  vindicated  General  Wilkinson  from 
the  attacks  which  were  wantonly  made  upon  him  ;  saying, 
it  was  the  policy  of  Mr.  Burr  and  his  counsel  to  endeavor 
to  tear  down  his  character  before  he  arrived,  and  that 
every  principle  of  propriety  was  violated  by  such  conduct. 
He  asked  if  it  was  right  that  a  man,  high  in  the  confi- 
dence of  government  and  of  his  country,  should  be  thus 
attacked,  and  declared  he  should  be  sorry  for  the  character 
of  his  fellow-citizens,  if  the  abuse  lavished  on  him  by  the 
accused  should  have  the  slightest  effect  on  the  event  of 
the  trial,  i 

Mr.  Mac  Rae  said  it  was  plainly  to  be  inferred  from 
the  president's  message  to  congress,  that  the  letter 
in  question  was  confidential.  It  appears  that  the  presi- 
dent furnished  extracts  of  some  of  the  letters  he 
received  relative  to  Mr.  Burr.  His  not  furnishing 
congress  with  a  copy  of  this  or  any  other  part  of  it, 
is  presumptive  evidence  that  it  ought  not  to  be  made 
public. 

Mr.  Randolph. — May  it  please  your  honors :  To  the 
observations  I  shall  make,  I  have  no  preface  norapolosry. 
I  beg  leave  to  appropriate  to  argument  the  time  which 
falls  to  my  lot  in  the  discussion  of  the  present  motion. 
I  did  not  believe,  sir,  that  to-day  there  would  have  been 
a  resurrection  of  the  discussion  which  took  place  yester- 
day ;  but  since  the  attorney  on  the  part  of  the  prosecu- 
tion has  thought  proper  to  introduce  it,  I  shall  not 
shrink  from  it,  but  meet  it.  I  make  no  appeal  to  the 
multitude  ;  it  is  not  my  desire  to  excite  the  sympathy, 
or  rouse  improperly  the  feelings  of  the  bystanders.  I 
shall  simply  state  the  proposition.  Why  is  Mr.  Burr  not 
entitled  to  ask  the  court  to  issue  a  subpoena  for  the  pro- 
duction of  those  papers?  Is  Mr.  Burr  not  now  before 
the  court  ?  Is  he  not  here  upon  his  recognizance?  Has 
he  not  been  here  a  considerable  time  on  the  tenterhook 
of  expectation,  that  when  General  Wilkinson,  that  great 
accomplisher  of  all  things,  arrived,  an  indictment  would 
be  preferred  against  him  ?  But  has  he,  on  that  account, 


MOTION    TO    PRODUCE    PAPERS.         143 

resigned  the  rights  of  defense  ?  Is  he  to  be  tongue-tied 
and  hand-tied,  without  the  privilege  of  defending  him- 
self? He  can  not  be  properly  defended  without  the 
production  of  these  papers,  and  on  that  account  he  now 
demands  the  interposition  of  the  court.  But,  say  the 
counsel  for  the  prosecution,  he  is  not  entitled  to  this 
privilege  until  an  indictment  is  preferred,  and  the  grand 
jury  find  a  true  bill.  Why  did  we  not  hear  this  objec- 
tion when  the  grand  jury  were  empaneled  ?  It  was 
proved,  yesterday,  by  several  law  authorities ;  it  was 
proved,  sir,  by  invariable  practice  ;  and  it  was  proved, 
by  a  wish  of  all  our  souls,  that  the  accused  ought  to  have 
this  privilege  from  the  very  commencement  of  the  pros- 
ecution. Wherefore,  then,  sir,  are  we  to  be  vexed  and 
perplexed  again  with  this  objection?  Wherefore  do 
they  say  it  is  premature  on  the  part  of  my  client?  I  see 
a  corps  of  worthies  around  me,  to  justify  what  I  say. 
Every  man,  I  assert,  who  appears  on  the  grounds  of  a 
recognizance,  stands  in  the  same  condition  as  one  on  his 
trial.  Are  you  to  shut  a  man  out  from  evidence  because 
he  is  only  accused,  because  his  life  can  only  be  forfeited  ? 
There  is  a  iiarshness  in  this  ;  there  is  a  severity  in  this 
sentiment,  which,  however  agreeable  it  may  be  to  the 
principles  of  law,  I  have  to  thank  God,  has  never  been 
my  practice.  The  principles  to  which  I  have  been  accus- 
tomed have  always  agreed  with  truth,  and  the  sacred 
books  of  the  scripture.  No  bill  is  yet  found  ;  and  I 
trust  none  ever  will.  The  amendment  to  the  constitu- 
tion, they  say,  does  not  apply  to  the  present  case,  but  to 
a  trial.  We  no  not  mean  to  force  this  point,  although 
ample  authority  might  be  produced  in  support  of  it. 
You,  sir,  will  certainly  do  what  is  right  in  the  present 
motion  ;  this  we  do  not  mean  to  doubt ;  but  you  will 
give  me  leave  to  ask,  what  our  situation  would  be,  in 
what  a  deplorable  dilemma  we  should  be  placed,  if,  at 
the  instant,  the  attorney  was  pressing  us  with  his  testi- 
mony, we  had  to  supplicate  your  honors  to  grant  us  the 
purport  of  the  motion  now  in  question  ?  and  if  the  trial 
could  not  be  postponed  (which  in  all  probability  it  would 
not),  we  must  go  to  a  final  decision  without  it.  In  that 
case,  even  were  the  sun  of  innocen.ce  ready  to  shed  his 
beams  upon  us,  we  would  be  cast  into  utter  darkness. 


i44  TRIAL     OF    AARON    BURR. 

No,  sir,  such  can  never  be  the  opinion  of  this  court:  jus- 
tice must  be  changed;  law  must  be  changed;  nature 
must  be  changed,  before  such  sentiments  can  be  heard. 
I  will  not  trouble  you  much  further  with  discussing  the 
propriety  of  our  application,  feeling  the  confidence  with 
which  I  am  certain  it  is  regarded  by  the  court ;  but  I  will 
come  directly  to  the  consideration  of  what  are  the  real 
points  in  discussion. 

This  is  not  whether  a  president  can  be  summoned  : 
that  part  is  happily  conceded  ;  and  I  rejoice  that  we 
mistook  in  the  commencement  of  the  argument,  the 
sentiments  of  the  attorney  on  the  part  of  the  prosecu- 
tion on  this  point.  I  rejoice,  I  say,  that  I  did  mistake 
him ;  because,  from  that  very  concession  I  will  draw 
every  corollary  that  may  be  necessary  for  establishing 
the  great  point  for  which  we  contend.  By  admitting 
that  the  president  of  the  United  States  can  be  sum- 
moned, a  great  canon  of  evidence  is  admitted.  I  must, 
however,  be  excused  by  the  worthy  gentlemen,  if  I  tell 
them  they  are  a  little  inconsistent.  In  throwing  ob- 
stacles in  our  way  against  obtaining  the  papers  for  which 
we  have  moved  the  court  to  issue  a  subpoena,  they 
imitate  that  bad  example  which  they  have  imputed  to 
us.  What  is  the  nature  of  the  evidence  we  do  ask? 
We  ask  for  that  sort  of  evidence  which  may  enable  us  to 
confront  James  Wilkinson  with  himself.  There  is  not 
an  idea  beyond  this.  We  wish  to  show  that  James 
Wilkinson,  in  his  official  capacity  as  commander  of  the 
army  of  the  United  States  at  New  Orleans,  is  not  the 
same  with  James  Wilkinson  the  correspondent  of  the 
president.  We  wish  to  prove  that  James  Wilkinson  has 
varied  from  himself,  and  that  he  has  varied  in  most 
essential  points  in  the  greatest  degree.  Mr.  Hay  tells 
us  that  everything  depends  upon  this  same  James  Wil- 
kinson ;  that  he  is,  in  reality,  the  AlpJia  and  Omega  of 
the  present  prosecution.  -  He  is,  in  short,  to  ^support  by 
his  deposition  the  sing-song  and  the  ballads  of  treason 
and  conspiracy,  which  we  have  heard  delivered  from  one 
extremity  of  the  continent  to  the  other.  The  funeral 
pile  of  prosecution  is  already  prepared  by  the  hands  of 
the  public  attorney,  and  nothing  is  wanting  to  kindle 
the  fatal  blaze  but  the  torch  of  James  Wilkinson.  He 


MOTION    TO    PRODUCE    PAPERS.         145 

is  to  exhibit  himself  in  a  most  conspicious  point  of  view 
in  the  tragedy  which  he  fancies  will  take  place.  He, 
James  Wilkinson,  is  to  officiate  as  the  high  priest  of  this 
human  sacrifice. 

Of  James  Wilkinson  we  are  not  afraid,  in  whatever 
shape  he  may  be  produced ;  in  whatever  form  he  may 
appear  before  this  court.  We  are  only  afraid  of  those 
effects  which  desperation  may  produce  in  his  mind. 
Desperation,  may  it  please  the  court,  is  a  word  of  great 
fitness  in  the  present  case.  General  Wilkinson  we 
behold  first  acting  as  a  conspirator  to  insnare  others, 
afterwards  as  a  patriot  to  betray  others  from  motives  ot 
patriotism.  What  must  be  the  embarrassment  of  this 
man  when  the  awful  catastrophe  arrives,  that  he  must 
either  substantiate  his  own  innocence  by  the  con- 
viction of  another,  or  be  himself  regarded  as  a  traitor 
and  conspirator,  in  the  event  of  the  acquittal  of  the 
accused. 

Is  it  not  to  be  supposed  that  General  Wilkinson  will 
do  many  things  rather  than  disappoint  the  wonder- 
seizing  appetite  of  America,  which  for  months  together 
he  has  been  gratifying  by  the  most  miraculous  actions? 
If  I  am  not  mistaken,  I  have  seen  it  in  some  of  the  pub- 
lic prints  that  he  is  no  longer  the  vicegerent  of  the 
Upper  Louisiana ;  and  if  I  may  be  indulged  with  the 
slightest  power  of  prophecy,  I  may  predict  that  this 
same  General  Wilkinson,  who  has  been  astonishing  the 
citizens  of  New  Orleans  with  plots  and  conspiracies,  will, 
before  many  weeks,  only  figure  in  the  capacity  of  a  pri- 
vate citizen.  I  shall  not  say  that  Generel  Wilkinson 
would  commit  perjury ;  let  me  not  be  understood  as 
making  such  an  assertion  ;  but  if  I  know  human  nature, 
if  I  understand  the  feelings  of  the  human  breast,  if  I 
have  the  slightest  knowledge  of  those  principles  which 
govern  the  mind  of  man,  I  may  be  allowed  to  affirm, 
that  every  feeling  would  be  asleep  in  his  breast  if  he  did 
not  use  every  exertion  in  his  power  for  the  conviction  of 
Mr.  Burr.  Upon  the  conviction  of  Mr.  Burr,  upon  the 
guilt,  I  say,  of  Mr.  Burr,  depends  the  innocence  of  Gen- 
eral Wilkinson.  If  Mr.  Burr  be  proved  guilty,  then, 
indeed,  General  Wilkinson  may  stand  acquitted  with 
many  of  his  countrymen  ;  but  if  Mr.  Burr  be  not  found 
10 


i46  TRIAL     OF    AARON    BURR. 

guilty,  the  character,  the  reputation,  in  short,  everything 
that  deserves  the  name  of  integrity,  will  be  gone  forever 
from  General  Wilkinson.  Sir,  in  that  event,  I  say,  in 
the  event  of  Burr's  acquittal,  as  sure  as  man  is  man, 
storms  and  tempests  will  cover  the  western  glory  of  Gen- 
eral Wilkinson,  and  gather  darkness  all  around  him. 
We  have,  therefore,  the  justest  cause  to  scrutinize  this 
gentleman's  deposition.  We  have  the  strongest  reasons 
to  examine  this  gentleman's  character,  and  to  trace  him 
in  his  most  confidential  walks.  From  his  letters  we 
have  already  had  some  glimpse  of  him  ;  but  1  should 
wish,  as  I  have  said,  to  have  him  confronted  with  him- 
self; I  mean,  to  have  his  correspondence  with  the  presi- 
dent of  the  United  States  opposed  to  whatever  state- 
ment he  may  deliver  here.  I  shall  therefore  suppose,  by 
way  of  illustration,  that  the  president  were  here,  and 
certain  questions  were  put  to  him.  The  president 
certainly  could  not  dispense  with  answering  these 
questions.  Much  as  I  respect  the  illustrious  character 
of  the  president  of  the  United  States,  yet  I  should 
begin  to  imagine  that  the  sheet-anchor  of  our  govern- 
ment was  gone,  if  the  president  could  be  excused  more 
than  any  other  individual  before  this  court,  from  answer- 
ing any  questions  which  might  be  put  to  him.  It  is 
really  most  extraordinary  that  these  gentlemen  should 
tell  us,  after  arriving  in  the  porch  of  the  temple,  that  we 
shall  not  go  into  the  sanctum  sanctorum  ;  that  we  are  at 
liberty  to  know  part  of  the  correspondence  which  has 
taken  place  between  General  Wilkinson  and  the  presi- 
dent of  the  United  States,  but  not  the  whole. 

The  gentleman  for  the  prosecution  has  to-day,  sir, 
given  us  an  eulogium  upon  himself  an'd  his  associate 
friends.  He  has  pictured  to  us  the  zeal  and  the  anxiety 
he  has  had  for  the  production  of  those  papers,  and  has 
assured  us  that  he  has  already  taken  means  for  having 
them  here.  I  thank  the  gentleman  for  his  exertions, 
but  at  the  same  time  I  must  beg  leave  to  remark  the 
equal  zeal  with  which  he  and  his  friends  combat  our 
application.  If  Mr.  Burr  were  now  asking  you  for  these 
papers,  without  showing  any  probable  cause  that  they 
were  material,  this,  indeed,  would  be  a  wanton,  woman- 
ish, feverish  curiosity  ;  but  it  is  no  such  curiosity :  we 


MOTION    TO    PRODUCE    PAPERS.         147 

have  shown  in  the  fullest  manner  that  they  are  material 
and  of  the  first  importance.  It  is  said  that  by  their  pro- 
duction General  Wilkinson,  that  huge  Atlas,  on  whose 
shoulders  the  American  world  is  sustained,  is  wished  to 
be  represented  as  a  man  in  whom  confidence  ought  not 
to  be  placed.  But,  I  say,  if  the  production  of  these 
papers  were  to  effect  the  annihilation  of  General  Wilkin- 
son, that  I  hope  and  believe  no  other  visible  chasm  in 
the  creation  would  be  produced,  but  in  that  portion  of 
space  at  present  occupied  by  his  material  body.  How 
can  the  rank  and  safety  of  General  Wilkinson  be  con- 
cerned in  the  production  of  these  papers?  General  Wil- 
kinson is  only  an  organ  in  the  hands  of  government. 
As  to  his  glory,  I  believe  its  meridian  splendor  is  set,  and 
that  he  will  be  no  longer  worshipped  as  the  political 
Messiah  of  America ;  but  even  if  he  were  crucified,  I 
trust  it  would  make  no  era  in  our  time.  Suspicion  at 
all  events  belongs  to  him.  He  stands  in  that  character 
which  is  always  regarded  as  odious ;  that  of  an  approver. 
He  has  confessed  himself  guilty  of  the  most  heinous  ot 
crimes,  for  the  purpose  of  entrapping  others  ;  of  render- 
ing others  equally  infamous  with  himself. 

We  are  told  that  our  motion  goes  to  reveal  state 
secrets;  that  confidential  characters  are  to  be  brought 
into  view !  State  secrets  !  The  very  name  strikes  me  with 
horror!  I  have  heard  one  of  the  gentlemen  concerned, 
renounce  the  idea,  and  I  shall  not  again  be  the  means  ot 
recalling  the  principle.  Sir,  I  will  not  say  that  there 
ought  not  to  be  a  limitation  with  respect  to  the  produc- 
tion of  state  papers.  But  in  what  character  is  the  name 
of  General  Wilkinson  inscribed  in  the  roll  of  fame,  to 
entitle  his  actions  to  be  concealed?  Is  the  safety  of  this 
country  to  be  endangered  by  calling  upon  him  as  a  wit- 
ness, who  is  known  and  declared  to  be  one  of  the  arch- 
witnesses  of  this  prosecution  ?  Is  the  national  safety  to 
be  endangered  by  this?  A  nation  stand  upon  this?  a 
nation  which  ought  only  to  look  to  the  Almighty  for  its 
rule !  Shall  the  people  of  this  country  be  considered  as 
in  danger,  though  this  motion  be  granted?  Should  they 
be  in  danger,  though  General  Wilkinson  were  given  up 
to  be  buffeted  ?  I  should  be  very  unwilling  indeed  that 
a  single  name  should  be  unnecessarily  exposed  ;  but  are 


148  TRIAL    OF    AARON    BURR. 

one  man's  fortune,  character,  and  life  to  be  brought  into 
jeopardy  in  order  to  conceal   the   names   of   others  ?    Is 
this   to    be  the  shield    under    which    General    Wilkin- 
son is  to  be  screened?    Is  the  executive  bureau  to  be 
made  a  sanctuary  of  scandal,  to    protect    the    fame    of 
General  Wilkinson,  and   when    opened    at   some    future 
period,  to  display  to  the  citizens  of  this  country,  a  tale 
perhaps  as  horrid  as  many  of  those  which  the  red  book 
of  France  has  unveiled  ?   The  revealing  of  confidential 
secrets  has  also  been  objected  to.      Two  cases  of   this 
nature  were  yesterday  ably  detailed  by  the  counsel  asso- 
ciated with  me.     The  case  of   Lord  Barrington,  and  the 
surgeon,  whose  evidence  was  given  on  the  trial  of   the 
duchess  of  Kingston  ;    but,  sir,  I  have   seen   within   the 
walls  of  this  house,  a  case  still  more  affecting  ;    a  case  in 
which,  if  ever  confidential  secrecy  was  to  be  pleaded,  it 
ought  then  to  have  been  sustained.      This,  sir,  was  the 
case  of  a  young  lad  of  sixteen  years  of  age,  who  \vas 
arraigned  at  this  bar  for  a  criminal  offense.      His  infant 
mind,  and  the  feelings  of  his  heart,  had  been  unburdened 
to  his  father  alone.      He,  led  by  paternal  affection,  was 
anxiously  attending  at  the  side  of  the  lad,  at  the  issue 
of  the  trial.     The  attorney  for  the  state,  after  fruitlessly 
examining  all  the  evidence  for  the  prosecution,  and  find- 
ing no  testimony  sufficient  to  sustain  it,  at  length  darted 
his  keen  and  penetrating  eye  upon  the  distressed  parent. 
He  immediately  made    an  application  to   the  court   to 
compel  him  to  give  evidence  against  his  son.     The  court 
were  greatly  affected  ;  tears  streamed  from  their  eyes.     I 
defended  him.     I  do  not  know  that  I  used  any  reasoning 
on  the  subject ;  but  the  close  ties  of  father  and  son,  and 
the  nature  of  confidential  secrecy,  were  in  vain  pleaded. 
The  court  determined  that   he  was  a  competent  witness, 
and  must  be  sworn  to  testify ;  and  were  about  to  compel 
the  father  to  give  testimony  against  the  son,  who  on  this 
testimony  alone  would  have  been  convicted.    The  father 
.  approached  the  book,  and  was  going  to  swear ;    but,  for 
the  honor  of  Virginia,  the  records  of  the  state  were  not 
blotted  with  so  sanguinary  a  sentence.      The  scene  was 
so  truly  affecting,  that  at  the  recommendation   of  the 
court  the  demand  for  his  evidence  was  not  persisted  in. 
But  is  General  Wilkinson  the  child  of  the  president  of 


MOTION     TO    PRODUCE    PAPERS.          149 

the  United  States  ?  Is  the  president  to  be  viewed  as  the 
father  of  General  Wilkinson?  Is  Mr.  Jefferson  to  be 
placed  in  the  same  situation  with  respect  to  James  Wil- 
kinson, as  the  parent  I  have  mentioned,  with  regard  to 
the  boy?  Are  the  hearts  of  Mr.  Jefferson  and  General 
Wilkinson  connected  by  the  same  tender  ties  of  sympa- 
thy^as  those  of  a  father  and  son !  The  law  is,  that  every 
man,  who  is  not  interested  in  the  event  of  a  cause,  is  a 
witness,  and  bound  to  give  his  testimony  when  called  on, 
except  in  cases  of  professional  confidence. 

The  objection  to  the  insufficiency  of  the  affidavit  is 
unfounded.  It  is  a  work  of  supererogation  to  make  it 
at  all.  It  was  not  necessary  to  entitle  us  to  make  the 
president  disclose  the  paper.  It  is  evident,  without  it, 
that  he  ought  to  produce  it.  We  proceeded  in  this  by 
way  of  frank  accommodation,  to  prevent  the  necessity  of 
his  attendance.  As  they  deny,  we  insist  on  the  right  to 
draw  this  paper  from  the  president's  pocket.  [Here  he 
expressed  a  hope  that  he  had  not  misunderstood  Mr. 
Wirt,  concerning  the  "necessity  of  the  affidavit.  Mr.  Wirt 
repeated  what  his  argument  had  been,  and  the  Chief 
Justice  stated  that  the  impression  of  the  court  was  sim- 
ilar.] A  man  ought  not-to  be  precluded  from  evidence 
which  he  thinks  material,  though  he  does  not  know  it  to 
be  positively  so.  If  the  paper  were  not  in  a  bureau  of 
office,  we  should  want  no  subpcena  duces  tecum.  It  stands 
on  the  same  ground  as  a  common  subpcena,  and  we  have 
the  same  right  to  have  it  as  to  have  a  common  subpcena. 
But  the  object  being  to  obtain  the  paper  only,  if  it  be 
tramsmitted  and  found  to  be  different  from  what  it  has 
been  represented  to  be,  the  witness  would  then  be  ex- 
cused from  attending. 

If  our  affidavit  stated  the  materiality  of  the  paper, 
and  yet  the  paper  should  be  found  to  be  otherwise,  we 
should  then  have  to  encounter  the  full  torrent  of  Mr. 
Hay's  invectives,  for  having  incautiously  sworn  to  what 
was  incorrect,  although  the  affidavit  stated  the  fact  pre- 
cisely, as  Mr.  Burr  had  every  just  reason  to  believe  it. 
Mr.  Burr  desires  to  obtain  this  paper,  but  he  knows  not 
its  contents;  he  can  not  say  what  is  in  it,  but  we  have 
the  holy  word  of  the  president  himself  that  it  relates  to 
*Jr.  Burr.  This  is  one  of  the  few  things  which  he  has 


i5o  TRIAL    OF    AARON    BURR. 

done  wrong.  The  president  testifies  that  Wilkinson  has 
testified  to  him  fully  against  Burr.  I  am  absolved  from 
all  scruples  on  this  subject.  I  have  a  right  to  demand 
peremptorily  Wilkinson's  letter,  when  it  is  said  that  it  will 
prove  Burr's  guilt.  The  president's  declaration  of  Burr's 
guilt  is  unconstitutional.  I  den)'  his  right  to  make  such 
a  declaration  against  any  man,  or  to  make  such  an  infer- 
ence from  statements  made  to  him.  The  constitution 
gives  him  no  such  right ;  and  its  exercise  by  the  president 
would  be  dangerous.  It  may  and  must  excite  unjust 
prejudices,  and  create  a  powerful  influence  against  a  man 
who  is  really  innocent.  The  constitution  very  wisely 
withholds  from  the  president  a  power  so  unfavorable  to  a 
fair  trial  between  the  public  and  individuals  accused,  and 
so  dangerous  to  the  liberties  and  lives  of  the  citizens.  I 
hope  it  is  no  rebellion,  but  I  hope  our  objection  to  this 
dangerous  and  unconstitutional  declaration  of  the  presi- 
dent will  be  handed  down  to  posterity,  to  prevent  his 
conduct  in  this  respect  from  being  imitated.  Congress 
did  not  call  upon  him  for  his  opinion.  They  would  have 
been  satisfied  with  his  statement  of  public  transactions, 
without  his  opinion.  He  is  to  see  that  the  laws  be  faith- 
fully executed,  and  to  give  information  with  respect  to 
the  state  of  the  Union  ;  but  he  is  not  to  give  opinions 
concerning  the  guilt  or  innocence  of  any  person. 

A  copy  of  this  letter  would  do  in  every  other  sense,  or 
for  any  other  purpose  ;  but  the  original  must  be  produced 
to  Wilkinson,  otherwise  he  might  deny  it  to  be  his.  If 
a  copy  were  produced,  he  might  deny  that  he  had  written, 
and  on  every  correct  principle  of  law  demand  the  pro- 
duction of,  the  original.  He  would  look  towards  the  city 
of  Washington,  and  consider  the  consequences  of  testi- 
fying here.  He  would  consider  how  the  government 
would  view  his  conduct.  He  might  know  it  to  be  a  true 
copy,  and  yet  be  afraid  to  say  so.  Perhaps  there  might 
be  inducements  for  him  not  to  deny  it ;  but  suppose  he 
were  to  deny  it  at  the  trial,  could  you  discharge  the  jury 
till  the  original  was  brought?  No  sir,  you  could  not;  and 
every  objection  would  be  made  and  sustained  against 
reading  the  copy.  Original  papers  only  have  ever  been 
admitted  as  evidence  in  penal  cases.  There  is  no  instance 
?f  a  conviction,  in  a  capital  case,  on  the  copy  of  a  letter 


MOTION     TO    PRODUCE    PAPERS.         151 

as  evidence.  The  case  of  Smith  and  Ogden  is  egre- 
giously  misunderstood  on  this  point.  [Here  Mr.  Wirt 
explained.  Mr.  Randolph  read  the  case  and  proceeded.] 
The  affidavit  was  wanted  there  to  put  off  the  trial.  To 
postpone  a  trial  the  utmost  precision  (precision  ad 
unguent)  is  necessary  ;  but  on  a  motion  to  take  testimony 
belief  is  sufficient. 

I  believe  that  Mr.  Jefferson  ought  to  hasten  to  produce 
that  paper.  His  regard  for  the  promotion  of  public 
justice  ought  to  induce  him  to  do  it.  His  character 
requires  that  he  should  produce  it.  Lest  that  character 
should  surfer,  I  would  almost  ask  it  for  his  sake.  Gentle- 
men say,  why  do  we  not  rely  upon  him,  and  demand  it 
of  him  ?  I  answer  that,  without  the  orders  of  this  court, 
the  prospect  of  obtaining  it  is  very  unpromising,  after 
we  have  made  an  application  to  one  of  his  secretaries 
(Mr.  Smith),  and  received  from  him  a  positive  and 
peremptory  denial,  with  a  declaration  that  the  orders 
were  intended  for  the  officers  alone  who  were  to  execute. 
Mr.  Van  Ness  had  said  that  there  had  been  a  promise 
made  to  furnish  it  to  Mr.  Burr's  counsel;  but  the  prom- 
ise had  not  been  performed.  The  orders  could  not  be 
secret,  since  they  were  published  in  The  Natchez  Ga- 
zette. Can  there  be  any  hopes,  then,  of  obtaining  them 
from  the  president  himself?  Time  has  been  taken,  and 
he  has  very  probably  been  consulted.  Mr.  Hay  is  not 
authorized  to  produce  the  papers,  although  he  has  some 
of  them.  As  then  it  is  probable  that  the  heads  of 
department  have  been  consulted,  in  the  time  which  has 
elapsed  since  bur  application  was  made ;  as  the  secretary 
of  the  navy  has  refused  to  furnish  these  papers,  and  the 
attorney  will  not  permit  us  even  to  look  at  the  papers  in 
his  possession,  I  trust  we  shall  be  excused  for  not  apply- 
ing to  the  president,  without  the  order  of  this  court. 

It  is  again  said  that  this  letter  is  confidential.  I  must 
revert  to  the  president  once  more.  He  is  but  a  man,  has 
ears  and  eyes,  and  can  see  and  hear  like  another  man ; 
he  may  be  a  witness  like  other  men  ;  he  has  no  preroga- 
tive to  have  any  secrets,  the  withholding  of  which  may 
go  to  the  destruction  of  the  dearest  interests  of  an 
accused  man.  Mr.  Hay  has  been  pleased  to  call  the 
affidavit  "  farcical."  I  wish  he  had  been  so  good  as  to 


152  TRIAL     OF    AARON    BURR. 

tell  us  how  he  would  have  had  it  drawn.  [Here  he  read 
it.]  Mr.  Burr  has  indications  that  it  is  material.  The 
president,  in  his  message  to  congress,  in  announcing  the 
doubtless  guilt  of  Mr.  Burr,  has  made  himself  judge  and 
accuser.  The  opposition  now  made  to  its  production 
justifies  the  opinion  that  the  letter  contains  more  than 
has  yet  been  disclosed;  that  there  is  something  more 
behind  the  curtain.  Sir,  I  contend  that  when  the  dearest 
interests  of  a  fellow-citizen  are  involved,  the  president's 
cabinet  is  not  too  sacred  to  be  examined  and  exposed  to 
view  in  a  court  of  justice.  I  know  that  the  present 
president  abhors  such  conduct;  but  would  you  permit  a 
future  president  to  hunt  down  any  man  by  proclamation, 
declaring  him  to  be  guilty  of  treason,  and  withholding  a 
part  of  the  facts  on  which  his  opinion  is  founded?  This 
puts  an  engine  into  the  president's  hands  to  destroy  an 
enemy,  by  giving  a  partial  statement  of  facts,  while  he 
publishes  the  most  unfavorable  opinion  of  him.  Mr.  Hay 
indulges  himself  in  little  verbal  criticisms ;  he  says  that 
"  may  be  material,"  is  the  same  thing  as  "  may  or  may 
not  be  material."  Sir,  Mr.  Burr  believes  that  they  may 
be  material.  With  this  impression  he  has  made  the  affi- 
davit, which  in  my  opinion  is  sufficiently  explicit,  if  an 
affidavit  be  at  all  necessary.  Something  has  been  said 
of  unmasking  our  defense.  Do  you  wish  us  to  tell  Gen- 
eral Wilkinson  all  the  grounds  upon  which  he  will  be 
attacked.  We  only  say  that  he  is  grossly  inconsistent 
in  his  disclosures,  and  that  he  will  be  contradicted.  We 
can  not  go  further  while  the  contents  of  his  letter  are 
unknown  to  us. 

But  Mr.  Burr's  affidavit  is  not  to  be  attended  to, 
because  he  has  feelings  and  may  be  misled  by  them  ! 
It  is  the  same  thing  with  every  other  man.  Because  a 
man  is  interested,  he  is  more  ready  to  make  known  to 
the  world  his  injuries  and  assert  his  innocence.  But  I 
must  notice  that  part  of  the  argument  relating  to  these 
orders  of  the  government,  wherein  my  friend  Mr.  Mar- 
tin was  charged  with  speaking  treasonably.  This  has 
raised  an  amazing  clamor.  I  added,  the  other  day,  the 
illegality  of  these  orders,  as  then  understood  by  me,  to 
the  other  causes  of  dissatisfaction  with  the  conduct  of 
the  president.  But  I  now  learn  that  these  orders  were 


MOTION     TO    PRODUCE    PAPERS.         153 

worse  than  I  expected:  that  they  were  to  burn,  kill,  and 
destroy  the  person  and  property  of  Mr.  Burr  and  his 
party.  Whether  the  orders  were  exactly  to  this  effect 
or  not,  I  am  not  sure  ;  but  I  believe  this  statement  not 
to  be  very  incorrect,  and  the  refusal  of  gentlemen  to 
produce  them  proves  that  there  is  something  behind  ;  or 
why  does  not  the  attorney  produce  the  copy  he  has  in 
possession  ?  Mr.  Martin  never  did  say  (as  I  understood 
him)  that  these  orders  justified  an  opposition  to  the  gov- 
ernment of  the  United  States.  Whatever  he  did,  we 
shall  contend  was  legal,  and  not  in  opposition  to  the 
government.  But  I  will  say,  that  if  the  president  had 
called  out  a  military  force,  illegally,  to  destroy  the  per- 
son or  property  of  any  man,  that  man  had  a  right  to 
resist.  The  orders  to  destroy  the  person  and  property 
of  Mr.  Burr,  if  given,  were  unconstitutional  and  unjusti- 
fiable. If  I  am  wrong  in  my  statement  I  pray  to  be  set 
right;  but  if  I  recollect  the  constitution  correctly,  it  does 
not  justify  such  orders  in  such  a  case  as  this.  It  only 
empowers  congress  "  to  provide  for  calling  forth  the 
militia  to  execute  the  laws  of  the  Union,  and  to  suppress 
insurrections  and  repel  invasions."  The  president  is 
sworn  "  to  preserve,  protect,  and  defend  the  constitution, 
and  he  is  to  take  care  that  the  laws  be  faithfully 
executed."  "  The  United  States  are  to  protect  each 
state  against  invasion  and  against  domestic  violence,  on 
application  of  the  legislature,  or  of  the  executive  when 
the  legislature  can  not  be  convened."  The  president  is  to 
call  out  a  military  force  only  to  suppress  insurrections  or 
to  repel  invasions.  Was  this  either  ?  There  certainly  was 
no  invasion  of  our  country  by  a  foreign  nation.  If  there 
*had  been  an  insurrection  the  state  governments  might 
have  interfered.  Was  there  any  application  for  aid  by 
any  state  government  ?  There  is  a  third  case,  it  must 
be  admitted,  in  which  an  armed  force  may  be  resorted 
to.  I  mean  infractions  of  the  law  of  nations  by  armed 
vessels.  These  are  the  only  three  cases  in  which  the 
president  is,  or  can  be  authorized  by  the  law  of  congress 
under  the  constitution  to  call  out  a  military  force ;  and 
as  none  of  them  occurred,  those  orders  were  illegal  and 
unjustifiable. 

Chief  Justice. — Does  not  the  law  of  congress  authorize 


154  TRIAL     OF    AARON     BURR. 

the  president  to  call  out  the  militia  to  suppress  an 
expedition  against  any  foreign  state  in  amity  with  the 
United  States? 

Mr.  Wirt  said  that  the  act  of  congress  passed  in  the 
year  1794,  expressly  required  the  president  to  employ 
military  force  to  suppress  or  prevent  any  such  ex- 
pedition. 

Mr.  Botts  said  that  Mr.  Burr  could  not  say  more  posi- 
tively than  that  "  it  may  be  material."  That  as  he 
did  not  know  what  evidence  might  be  adduced  against 
him,  it  could  not  safely  be  otherwise  expressed. 

Chief  Justice. — Could  not  the  word  be  changed  to 
"will?" 

Mr.  Botts. — For  the  sake  of  precedent  I  wish  it 
to  remain  as  it  is. 

Mr.  Wirt. — If  the  word  "  will  "  were  to  be  inserted  in- 
stead of  "  may  be,"  the  objection  to  the  generality  of 
the  affidavit  would  still  remain. 

Mr.  Martin. — Agreed ;  but  we  will  speak  of  that  here- 
after. 

Mr.  Wirt. — Examine  the  letter ;  it  only  goes  to  the 
guilt  of  Mr.  Burr.  How  can  it  confront  Wilkinson  if  it 
speaks  of  the  guilt  of  Burr  ? 

CJiief  Justice. — But  there  may  be  contradictory  state- 
ments of  guilt. 

Mr.  Wirt. — But  the  prima  facie  evidence  of  this  letter 
is,  that  it  charges  guilt ;  but  there  is  no  evidence  of  con- 
tradiction, there  are  only  vague  insinuations.  The  law 
of  congress  authorized  the  president  to  act  as  he  did. 
By  the  /th  section  of  this  law,  "  the  navy  or  army  of  the 
United  States  may  be  called  out  to  take  such  ship  or# 
vessel,"  and  also  for  the  purpose  of  quelling  any  force 
raised  for  carrying  on  any  expedition  against  any  coun- 
try with  which  the  United  States  are  at  peace. 

Mr.  Randolph  proceeded.  The  object  of  requiring  the 
orders  to  be  produced  is,  to  ascertain  whether  they  be 
conformable  to  the  law  ;  and  no  power  to  call  out  the 
militia  in  the  commencement  of  an  expedition,  or  in  be- 
ginning to  prepare  the  means,  is  given  by  the  law.  I 
will  suppose,  for  a  moment,  what  I  utterly  deny  to  be 
the  fact,  that  Mr.  Burr  had  actually  begun  an  expe- 
dition, had  prepared  arms,  vessels,  men,  &c. ;  yet,  as 


MOTION     TO    PRODUCE    PAPERS.         155 

penal  laws  are  to  be  construed  strictly,  he  could  only  be 
stopped  under  this  law,  when  the  expedition  was  actually 
formed  and  carried  on.  But  it  is  insinuated  to  be  im- 
proper to  ask  the  president,  and  not  the  officers  of  gov- 
ernment, for  those  papers.  The  president  is  the  person 
who  must  be  considered  as  having  refused  the  papers. 
All  the  officers  act  under  him,  and  must  obey  him.  Ap- 
plication should  be  made  to  the  department  of  state. 
The  chief  justice  said  that  the  department  of  state  ought 
not  to  be  applied  to.  [See  Mr.  Hay's  argument.]  As 
to  the  letter,  it  must  be  in  the  president's  bureau  ;  for, 
as  far  as  we  can  discover,  it  is  directed  to  him,  and  he 
withheld  it  from  the  legislature.  But  it  is  asked,  what 
is  to  be  done  with  the  letter,  if  parts  of  it  are  not  proper 
to  be  exposed?  This  is  a  most  extraordinary  objection. 
Shall  we  be  refused  the  parts  important  for  our  defense, 
because  other  parts  are  improper  to  be  published  ?  An 
arrangement  could  easily  be  made,  by  which  only  those 
parts  which  are  proper  to  be  disclosed,  should  be  used. 

Sir,  I  must  make  a  few  remarks  with  respect  to  your 
exhortation,  and  what  was  said  by  gentlemen  yesterday 
and  to-day.  We  have  been  charged  with  the  policy  of 
exciting  prejudices  against  the  administration,  rather 
than  defending  Burr.  Hints  were  also  thrown  out  as  to 
popular  opinion.  Sir,  I  never  defend  my  client  by  popu- 
lar prejudice.  I  know  it  would  be  in  vain  to  attempt  it. 
I  know  who  has  got  the  windward  of  me.  They  have 
the  public  approbation  strongly  in  their  favor.  I  know 
how  impotent  is  one  individual,  when  opposed  to  the 
power  of  the  government.  'But  I  hope  the  arguments 
we  have  been  compelled  to  use,  will  have  their  due 
weight  with  the  court.  The  gigantic  magnitude  of  the 
crime  charged  against  us,  is  diminishing  every  day  ;  and 
we  have  nothing  but  an  interested  man,  whose  all  is  at 
stake,  to  oppose  us.  We  demand  justice  only,  and  if 
you  can  not  exorcise  the  demon  of  prejudice,  you  can 
chain  him  down  to  law  and  reason,  and  then  we  shall 
have  nothing  to  fear. 

Mr.  Wirt. — As  to  the  denial  of  the  law  by  Mr.  Ran- 
dolph and  the  gentleman  from  Baltimore,  I  insist  that 
they  are  mistaken  ;  and  that  the  law  is  as  I  have  stated 
it  to  be.  The  respect  which  I  owe  to  this  court  would 


156  TRIAL     OF    AAROft     BURR. 

prevent  me  from  asserting  for  law,  that  which  I  do  not 
know  to  be  law.  Mr.  Randolph  has  enumerated  three 
cases  in  which  force  could  be  used,  and  then  sat  down 
majestically,  and  called  the  giant  to  be  produced  at 
once? 

Mr.  Martin  endeavored  to  explain,  by  saying  that  he 
had  not  said  that  there  was  no  such  law. 

Mr.  Randolph  explained. 

Chief  Justice. — The  truth  is,  that  you  did  not  advert 
to  the  law. 

Mr.  Botts  observed,  that  Mr.  Wirt  had  said  that  the 
law  justified  an  order  to  kill  Burr  and  his  party,  without 
trial  or  condemnation. 

Mr.  Wirt  denied  it.  He  had  only  said  that  there  was 
such  a  law.  I  mentioned  it  before,  said  he,  and  I  pointed 
to  it  afterwards.  I  feel  my  candor  impeached  by  the 
course  which  gentlemen  have  thought  proper  to  take. 
If  the  court  should  doubt  as  to  the  construction  of  the 
act  of  congress,  I  should  wish  to  be  heard  further  on  the 
subject. 

Mr.  Randolph  said  that  he  meant  nothing  personally 
against  Mr.  Wirt ;  but  he  had  said  that  he  knew  no  law 
that  was  applicable ;  and  he  now  insisted  that  the  law 
was  as  he  represented. 

Mr.  Martin  asked  leave  to  speak  again  ;  and  the  court 
was  adjourned  till  to-morrow.  The  grand  jury  was  ad- 
journed till  Saturday. 

FRIDAY,  June  i2th,  1807. 

Mr.  Martin. — I  shall  now,  may  it  please  your  honors, 
make  a  few  observations,  in  which  I  shall  endeavor  to 
avoid  all  extraneous  matter.  This  has  been  uniformly 
asserted  by  the  gentlemen  for  the  prosecution,  to  be  a 
motion  addressed  to  the  discretion  of  the  court;  and  in 
some  degree  admitted  by  the  counsel  with  whom  I  act. 
But  the  practice  in  the  state  from  whence  I  came  (Mary- 
land) is  different.  Ksubpana  duces  tecum  is  never  applied 
for  in  court.  It  is  issued,  of  course,  by  the  clerk,  acqui- 
esced in  by  the  parties  and  counsel,  approved  by  the 
court,  and  never  opposed.  According  to  that  practice, 
(and  which  gentlemen  will  excuse  me  for  mentioning,  as 


MOTION    TO    PRODUCE    PAPERS.         157 

they  have  so  repeatedly  called  on  me  to  state  whether 
I  had  known  such  a  process  to  issue  in  such  a  case),  the 
right  of  the  prosecuting  counsel  to  oppose  the  demand 
of  the  accused  is  denied  ;  and  it  is  no  more  competent 
for  them  to  do  this,  than  to  oppose  the  granting  sub- 
poenas for  living  evidence.  It  would  be  deemed  highly 
indecorous  to  make  such  an  opposition.  They  ask  us 
the  reason  why  we  make  this  motion.  We  tell  them 
that  the  object  of  the  accused,  in  demanding  thespro- 
duction  of  General  Wilkinson's  letter,  is,  that  we  may 
compare  its  purport  with  that  of  communications  which 
he  has  made  to  others.  If  he  has  made  inconsistent  or 
contradictory  statements,  and  we  can  prove  that  he  has 
done  so,  we  certainly  have  a  right  to  avail  ourselves  of 
it,  to  lessen  or  destroy  his  credit.  But  its  production 
is  opposed  on  the  ground  of  its  containing  state  secrets; 
and  that  it  may  expose  the  names  of  others  presumed 
to  be  implicated.  Is  this  exposure  to  be  prevented  at 
the  hazard  of  Mr.  Burr's  life  ?  Innocence  can  not  suffer 
by  exposure:  guilt  ought  to  be  detected.  What,  sir! 
shall  the  cabinet  of  the  United  States  be  converted  into 
a  lion's  mouth  of  Venice,  or  into  a  repertorium  of  the 
Inquisition  ?  Shall  envy,  hatred,  and  all  the  malignant 
passions  pour  their  poison  into  that  cabinet  against  the 
character  and  life  of  a  fellow-citizen,  and  yet  that  cab- 
inet not  be  examined  in  vindication  of  that  character, 
and  to  protect  that  life  ?  Shall  a  citizen  be  privately 
accused,  and  the  name  of  his  accuser  not  even  made 
known  to  him  ?  No  more  of  this  letter  is  sought  to  be 
used  as  evidence  than  relates  to  the  accused.  When  the 
letter  is  produced  the  court  can  judge  of  it,  and  with- 
hold from  the  public  any  secrets  which  ought  not  to  be 
disclosed.  The  mere  possibility  of  its  containing  state 
secrets  is  no  reason  why  there  should  be  a  suppression 
of  what  is  no  secret.  Gentlemen  tell  us  that  they  are 
perfectly  willing  we  should  get  it  ;  and  yet  they  throw 
impediments  in  our  way  to  prevent  us  from  getting  it  ! 

Mr.  Hay  declared  that  he  had  written  for  the  letter, 
and  had  done  everything  in  his  power  to  obtain  it, 
though  gentlemen  seemed  disposed  not  to  credit  him. 

Mr.  Martin. — If  we  were  certain  that  the  gentleman 
would  succeed  in  his  application  we  should  be  disposed 


158  TRIAL     OF    AARON    BURR. 

not  to  trouble  the  court  with  this  motion.  But  can  we 
depend  on  his  success  when  the  gentleman  tells  us  that 
when  the  papers  come  he  will  not  let  us  look  at  them  ? 
What  will  be  our  situation  after  the  trial  is  begun  if  the 
papers  do  not  come?  It  will  be  then  too  late  to  move 
for  a  postponement  ;  and  we  shall  lose  the  evidence. 
We  are  entitled  to  it  now,  and  ought  to  have  it.  I  can 
not  say  that  I  feel  disposed  to  rely  much  on  the  favors 
of  an  adverse  party.  "  Timeo  Danaos  et  dona  ferentes" 
I  prefer  the  enjoyment  of  my  certain  rights  to  the 
promises  of  him  whose  interest  is  opposed  to  mine. 

But  we  are  told  that  there  ought  to  be  respect 
between  the  departments  of  government ;  that  we  ought 
to  respect  the  president.  Is  it  derogatory  from  that 
respect  to  issue  process  to  obtain  necessary  testimony 
from  him  ?  Will  the  president  think  himself  insulted  by 
the  demand  of  a  mere  document?  Can  he  possibly 
think  it  disrespectful?  But  suppose  he  should,  is 
the  life  of  a  man,  lately  high  in  public  esteem,  not 
indeed  the  first,  but  the  second  citizen  in  our  coun- 
try, to  be  endangered  for  the  sake  of  punctilio  to  the 
president  of  the  United  States?  Sir,  we  appeal  to  the 
Supreme  Maker  that  we  only  wish  justice,  and  fear  only 
perjury.  We  approach  with  uplifted  hands  the  sacred 
altar  of  justice,  as  a  sanctuary  to  screen  us,  not  from 
just  punishment,  but  from  unjust,  rancorous  persecu- 
tion !  and  from  this  sanctuary  we  confidently  expect 
protection. 

But  we  are  told  that  a  copy  will  be  sufficient.  But 
will  the  copy  show  that  the  original  is  not  a  forgery  ? 
It  may  prove  that  there  is  a  paper,  of  which  it  is  a  copy, 
deposited  in  the  office  ;  but  it  will  not  prove  that  the 
paper  so  deposited  is  the  handwriting  of  General  Wil- 
kinson. If  General  Wilkinson  wrote  a  libel  and  sent  it 
to  the  president,  would  a  copy  be  admitted  as  evidence 
against  him  on  a  prosecution  for  the  libel  ?•  Copies  are 
never  admitted  as  evidence  in  prosecutions  for  libels  or 
in  any  criminal  prosecutions.  But  gentlemen  say  that 
General  Wilkinson  would  not  dare  to  deny  that  he  had 
written  it  if  the  counsel  agreed  that  it  should  be  evi- 
dence. Would  that  make  it  in  his  handwriting?  Gen- 
eral Wilkinson  has  already  violated  his  oath  in  willfully 


.    MOTION    TO    PRODUCE    PAPERS.         159 

and  tyrannically  violating  the  constitution  he  had 
solemnly  sworn  to  support.  Has  he  not  .exercised  the 
most  wanton  military  despotism  ?  Has  he  not  insult- 
ingly resisted  and  trampled  under  foot  the  constituted 
authorities,  in  disobeying  the  writ  of  habeas  corpus? 
Has  he  not  done  all  these  things  in  open  defiance  and  in 
palpable  violation  of  the  plain  letter  and  meaning  of  the 
constitution  ?  He  comes  here  to  justify  these  misdeeds. 
A  man  who  has  done  a  series  of  bad  acts  will  not  fail  to 
add  one  more  in  order  to  conceal  them  from  view,  and 
secure  himself  from  punishment.  Though  he  is  the 
pivot  on  which  the  prosecution  turns,  and,  therefore,  the 
counsel  for  the  United  States  uphold  him,  Mr.  Burr 
has  not  confidence  in  the  honor  or  integrity  of  General 
Wilkinson  to  trust  his  life  to  his  veracity.  But  it  is  said 
that  if  he  should  deny  it,  then  we  can  send  for  the  orig- 
inal. He  would  have  no  occasion  to  deny  it  till  the 
jury  were  sworn  to  try  Mr.  Burr  ;  and  if  the  testimony 
on  both  sides  were  equal,  and  the  scales  of  justice  hang- 
ing even,  the  denial  of  General  Wilkinson  put  in  the 
scale  against  us  Mrould  predominate;  then  it  would  be 
too  late  so  send  for  the  original  to  confront  and  disprove 
his  denial  ;  the  "fiat "  of  life  and  death  must  be  deter- 
mined by  the  evidence  before  the  jury  ;  we  ought,  there- 
fore, to  get  the  original  now. 

But  the  gentleman  asserts  that  we  have  made  the  mo- 
tion "in  order  to  glance  at  the  president.  We  disclaim 
such  motives.  It  would  be  dastardly  to  make  a  court  of 
justice  the  scene  of  such  detraction  ;  the  means  to  abuse 
individuals.  We  deny  such  motives;  nor  are  gentlemen 
warranted  in  imputing  them  to  us. 

But  the  gentleman  has  told  us  that  respect  ought  to  be 
paid  to  the  officers  of  government.  It  is  granted.  I 
once  thought  so.  I  thought  that  the  officers  of  govern- 
ment ought  to  be  treated  with  high  respect,  however 
much  their  conduct  ought  to  be  the  subject  of  criticism ; 
and  I  invariably  acted  according  to  that  principle.  If  I 
have  changed  my  opinion,  1  owe  it  to  the  gentleman 
himself,  and  the  party  he  is  connected  with.  They  for- 
merly thought  differently.  That  gentleman  and  his 
friends  so  loudly  and  incessantly  clamored  against  the 
officers  of  government,  that  they  contributed  to  effect  a 


160  TRIAL     OF    AARON    BURR. 

change  in  the  administration,  and  are  now  in  consequence 
basking  in  the  sunshine  of  office  ;  and  therefore  they 
•wish  to  inculcate  and  receive  that  respect  which  they 
formerly  denied  to  others  in  the  same  situation.  We 
have  a  right  to  inspect  the  orders  issued  from  the  war 
and  navy  departments ;  because,  if  they  were  illegal,  we 
have  a  right  to  oppose  them.  If  they  were  unconstitu- 
tional and  oppressive,  it  was  right  to  resist  them ;  but 
this  is  denied,  because  we  are  not  trying  the  president. 
God  forbid  we  should.  But  we  are  trying  if  we  had  a 
right  to  resist.  If  every  order,  however  arbitrary  and 
unjust,  is  to  be  obeyed,  we  are  slaves  as  much  as  the 
inhabitants  of  Turkey.  If  the  presidential  edicts  are  to 
be  the  supreme  law,  and  the  officers  of  the  government 
have  but  to  register  them,  as  formerly  in  France  (the 
country  once  so  famed  by  these  gentlemen  for  its  progress 
and  advancement  towards  liberty);  and  if  we  must  sub- 
mit to  them,  however  unjust  and  unconstitutional,  we 
are  as  subject  to  despotism  as  the  people  of  Turkey,  the 
subjects  of  the  former  "  Grand  Monarques  "  in  France,  or 
those  of  the  despot  Bonaparte  at  this  day.  If  this  were  true 
where  would  be  our  boasted  freedom  ?  where  the  superior 
advantages  of  our  government,  or  the  beneficial  effects 
of  our  revolutionary  struggle?  I  will  take  the  liberty 
of  explaining  how  far  resistance  is  justifiable.  The  pres- 
ident has  certain  known  and  well  defined  powers  ;  so  has 
a  common  magistrate,  and  so  has  a  constable.  The  pres- 
ident may  exceed  his  legal  authority,  as  well  as  a  magis- 
trate or  a  constable.  If  a  magistrate  issue  a  warrant  and 
direct  it  to  a  constable,  resistance  to  it  is  at  the  peril  of 
the  person  resisting.  If  the  warrant  be  illegal,  he  is 
excused  ;  but  if  it  be  legal,  he  is  not.  On  the  same 
principle,  resistance  to  the  orders  of  the  president  is 
excusable,  if  they  be  unconstitutional  and  illegal.  Re- 
sistance to  an  act  of  oppression,  unauthorized  by  law, 
can  never  be  criminal;  and  this  is  all  we  contend  for. 

Mr.  Hay  stated  that  he  was  sorry  to  interrupt 
the  gentleman;  but,  from  his  argument,  it  was  evident 
that  the  ground  taken  by  himself  and  the  gentlemen 
associated  with  him  in  the  prosecution  was  entirely  mis- 
understood. He  denied  that  he  ever  said  that  the  presi- 
dent's orders  are  invariably  to  be  observed.  That  such 


MOTION     TO    PRODUCE    PAPERS.         161 

• 

an  assertion  might  justly  be  considered  as  incompatible 
with  the  principles  of  our  government.  Mr.  Hay  then 
explained  what  his  argument  had  been,  a/id  what  he 
.  meant  to  insist  on  as  correct.  That  if  information  had 
been  lodged  with  the  president  that  a  dangerous  con- 
spiracy or  insurrection  against  the  government  and  laws, 
or  an  expedition  against  a  nation  in  amity  with  this 
country,  was  secretly  or  openly  forming,  it  was  the  duty 
of  the  president  to  issue  orders  to  suppress  the  insurrec- 
tion or  prevent  the  expedition  ;  and  if  he  did  issue  such 
orders  or  precept,  it  would  not  be  lawful  in  an  individual 
to  oppose  them  by  force ;  that  an  act  of  opposition  to 
his  precept  so  issued,  if  not  treason,  would  be  at  least  a 
high  misdemeanor ;  that  such  a  precept  was  very  different 
from  an  order  to  kill  or  imprison  without  bail  or  main- 
prise,  or  to  raze  to  the  ground  and  destroy,  as  a  gentle- 
man had  represented  the  orders  in  question.  A 

Mr.  Martin  appealed  to  the  court  and  bystanders 
whether  Mr.  Hay's  assertions  or  arguments  had  not  been 
substantially  as  he  had  represented  them,  and  then  con- 
tinued. The  gentleman  expressed  his  surprise  that  such 
doctrines  should  come  from  me,  who  come  from  Mary- 
land to  instruct  and  enlighten  the  Virginia  bar.  I  come 
not  to  instruct  or  enlighten.  I  come  to  unite  my  feeble 
efforts  with  those  of  other  gentlemen  in  defense  of  my 
friend,  whom  I  believe  to  be  perfectly  innocent  of  the 
heavy  charges  against  him  ;  but  their  conduct  evinces 
that  if  I  were  to  attempt  it,  my  instructions  would  be  in 
vain.  If,  however,  I  did  venture  to  advise  him,  it  would 
be  not  to  accuse  us  of  evil  intentions;  to  mix  a  little  of 
the  milk  of  human  nature  with  his  disposition  and  argu- 
ments ;  to  make  his  conduct  conformable  to  his  profes- 
sions, and  not  to  be  perpetually  imputing  guilt  to  us. 
But  the  gentleman  needs  no  advice. 

I  have  said  that  I  believed  the  orders  and  letter  to  be 
necessary.  I  will  not  examine  now  as  to  their  legality; 
that  will  be  discussed  hereafter ;  but  it  is  evident  that 
they  are  material  to  try  whether  they  were  legal  or  not ; 
and  if  they  were  resisted,  whether  that  resistance  was 
legal  or  not.  The  president  is  the  proper  person  to 
apply  to,  because  all  the  officers  of  the  government  are 
under  his  control.  But  two  objections  have  been 

II 


162  TRIAL     OF    AARON    BURR. 

• 

made,  which  have  not  yet,  within  my  recollection,  been 
answered  :  One  is  in  the  form  of  a  question,  that  if  this 
evidence  came,  what  would  be  done  with  it  ?  The  answer 
is  obvious  :  that  it  must  be  retained  by  the  court  till  it* 
is  wanted.  The  other  objection  is  that  there  is  no  par- 
ticular day  to  which  the  subpoena  is  legally  returnable ; 
the  cause  is  not  set  on  the  docket  to  be  tried  on  any 
particular  day,  and  therefore  no  particular  day  is  named. 
But  this  will  produce  no  inconvenience  ;  in  general,  pro- 
cess is  made  returnable  on  the  first  day  of  the  term. 
There  the  witness  can  attend  as  soon  as  it  may  be  con- 
venient ;  that  is,  as  soon  as  possible  after  the  subpcena 
shall  have  been  served  ;  and  it  is  in  the  power  of  the 
court  to  make  it  returnable  when  they  think  proper. 
[Here  Mr.  Martin  made  a  reference  to  the  practice  in 
Maryland,  which  was  not  distinctly  understood.]  I  thank 
the  court  for  their  patience  in  hearing  these  few  observa- 
tions ;  whether  time  has  been  gained  or  not,  the  result 
will  show. 

Chief  Justice. — The  affidavit  speaks  of  an  answer  to 
General  Wilkinson's  letter. 

Mr.  Burr. — Though  I  am  extremely  well  satisfied  with 
the  arguments  of  my  counsel,  as  far  as  they  have  gone, 
yet  I  shall  offer  a  few  additional  remarks.  The  counsel 
for  the  prosecution  are  mistaken  when  the  say  that  it 
would  be  improper  to  address  the  subpcena  to  the  presi- 
dent. The  public  papers  are  not  kept  in  the  department 
of  state,  but  in  the  separate  departments  according  to 
their  nature.  There  is  no  official  communication  between 
General  Wilkinson,  as  a  general  or  commander-in-chief, 
and  the  the  president;  though  there  may  be  as  governor 
of  Louisiana.  The  communications  from  him,  as  gen- 
eral, are  to  the  department  of  war.  The  president's  letter 
does  not  show  where  General  Wilkinson's  letter  is  depos- 
ited. If  addressed  to  him,  it  continues  in  his  possession. 
His  communication  to  congress  shows  that  he  has  it. 
The  course  in  congress  is  to  apply  directly  to  the  presi- 
dent for  any  papers  or  documents  wanted,  and  not  to 
the  secretaries ;  because  they  are  all  under  his  control 
and  direction  ;  he  can  order  them  to  deliver  any  paper 
or  document  in  their  possession,  and  they  must  obey 
him.  Mr.  Burr  then- went  more  into  detail,  the  substance 


MOTION     TO    PRODUCE    PAPERS.         163 

of  which  was  that  there  was  no  evidence  of  the  commis- 
sion of  treason  ;  that  the  president,  in  his  communication 
to  congress,  and  in  his  proclamation,  grounded  on  Gen- 
eral Wilkinson's  letter  to  him  of  the  2ist  of  October, 
insinuates  nothing  of  a  treasonable  nature;  that  in 
these  he  states  that  an  attack  on  the  Spanish  colonies 
was  supposed  to  be  intended  ;  but  if  there  had  been  any 
just  reason  for  believing  that  treason  had  been  commit- 
ted, the  president  would  certainly  have  stated  it  ;  that 
he  had  been  denounced  by  the  highest  authority  in  the 
country  ;  that  this  denunciation  had  created  a  general 
prejudice  against  him  ;  that  the  government  ought  to 
furnish  all  the  means  in  its  power  to  remove  the  unjust 
prejudices  thus  improperly  excited  against  him  ;  that  he 
asked  no  privilege  but  what  the  laws  conferred  on  ever)' 
citizen.  He  demanded  these  papers,  not  for  the  purposes 
of  detraction,  as  had  been  unjustly  asserted ;  but  to  dis- 
cover facts  tending  to  prove  his  own  innocence.  He 
denied,  in  strong  terms,  having  advised  or  stimulated  his 
counsel  to  abuse  the  administration  ;  that,  on  the  con- 
trary, he  had  charged  them  to  avoid  all  irritating  reflec- 
tions. He  concluded  by  expressing  his  hopes  that  the 
motion  would  be  granted  ;  that  if  the  court  made  the 
order,  the  papers  would  be  obtained  without  delay ; 
whereas  a  previous  application  for  them  without  such 
order,  if  unsuccessful,  would  produce  considerable  delay, 
which  he  wished  very  much  to  avoid ;  and  that  the 
approach  of  General  Wilkinson  required  a  prompt 
opinion  of  the  court  to  prevent  delay. 

Mr.  Hay  observed  that  he  was  much  struck  with  the 
boldness  of  some  gentlemen  on  a  subject  on  which  they 
were  not  correctly  informed.  He  said  that  no  opportu- 
nity was  lost  to  abuse  the  administration.  He  animad- 
verted on  the  argument  of  Mr.  Randolph  the  other  day 
That  he  had  proclaimed  loudly  that  some  parts  of  the 
orders  of  the  navy  department  had  excited  in  his  mind 
the  most  uneasy  sensations.  He  confidently  stated  that 
these  orders  were  most  cruel  and  illegal ;  that  they  were 
to  kill  and  destroy  Mr.  Burr,  and  burn  his  property 
wherever  found.  That  the  purpose  of  gentlemen  was 
easily  discerned;  that  Mr.  Martin,  in  his  vehement  man- 
ner, talked  about  the  hell-hounds  and  blood-hounds  of 


164  TRIAL     OF    AARON    BURR. 

persecution  having  been  let  loose  by  the  president  or  his 
instrumentality,  to  hunt  down  and  destroy  Mr.  Burr. 
That  he  was  sorry  that  gentlemen  should  ascribe  such 
acts  to  the  government  as  not  only  it  had  never  done, 
but  as  it  was  incapable  of  doing.  T.o  silence  their 
clamors,  and  put  an  end  to  such  declamations  about 
cruelty  and  tyranny,  he  said  that  he  would  produce  a 
copy  of  the  order  from  the  secretary  of  the  navy,  to 
which  all  their  complaints  referred  ;  that  he  would  read 
it,  and  it  would  appear  to  be  legal  and  proper;  and  that, 
notwithstanding  all  the  invectives  against  the  administra- 
tion on  account  of  it,  there  was  no  just  cause  of  com- 
plaint against  it. 

The  counsel  of  Mr.  Burr  wished  to  inspect  the  paper 
before  it  was  read.  Mr.  Hay  offered  to  read  it,  but 
refused  to  let  them  examine  it.  They  then  objected  to 
its  being  read,  and  insisted  that  it  was  the  undoubted 
right  of  counsel,  iri  every  case,  to  examine  all  documents 
intended  as  evidence  before  they  could  be  read. 

Mr.  Hay  then  observed  that  their  objection  to  its 
being  read  showed  clearly  their  object,  and  was  a  pal- 
pable contradiction  to  their  statement ;  that  they  used 
it  as  a  mere  pretext.  Believing  it  not  to  be  in  court, 
they  loudly  dejnanded  it  as  a  document  essential  to  their 
client  and  demonstrative  of  oppression  in  the  govern- 
ment ;  but  the  moment  it  is  offered  to  be  read  they 
object  to  it. 

Mr.  Martin  vindicated  Mr.  Burr  from  the  charge  of 
having  stimulated  him  to  make  any  severe  reflections  ; 
that  Mr.  Burr  had,  in  fact,  endeavored  to  restrain  him  ; 
but  that  he  was  urged  by  his  own  feelings  to  express  his 
sentiments,  contrary  to  the  directions  of  his  client. 

Mr.  Botts  vindicated  Mr.  Randolph  (who  was  absent) 
from  the  charge  preferred  against  him  by  Mr.  Hay. 
He  did  not  believe  that  Mr.  Hay  had  intentionally  mis- 
represented anything ;  but  that  he  was  incorrect  in  say- 
ing that  the  counsel  of  Mr.  Burr  had  expressed  com- 
plaints without  cause,  and  exhibited  charges  without  any 
evidence.  We  are,  said  Mr.  Botts,  in  a  delicate  situ- 
ation :  great  prejudices  have  been  excited,  and  the  popu- 
lar voice  is  raised  against  us.  But  we  hope  that  truth 
and  justice  will  prevail.  We  do  not  wish  to  accuse  the 


MOTION  TO  INSTRUCT  GRAND  JURY.    165 

executive  unjustly  ;  innocence  ought  to  be  presumed  until 
guilt  appears.  We  have  prima  facie  evidence  of  what 
we  allege  ;  but  still  we  hope  that  the  honor  and  charac- 
ter of  the'  government  will  be  found  to  be  unsullied,  and 
that  all  doubts  respecting  its  conduct  will  be  cleared  up. 
This  can  be  most  effectually  done  by  producing  freely, 
without  reserve  or  opposition,  all  the  testimony  in  its 
power,  which  we  demand  as  material  to  our  defense. 
Mr.  Burr  wished  us  not  to  wander  into  charges  against 
the  administration  unless  the  proofs  of  its  improper  acts 
were  undubitable,  and  they  were  clearly  connected  with 
this  cause. 

The  chief  justice,  after  having  expressed  the  regret  of 
the  court  at  the  length  of  time  already  consumed  in  the 
discussion  of  this  motion,  proposed  that  no  more  than 
the  usual  number  of  counsel  should  speak  on  incidental 
points.  That  the  court  was  unwilling  to  check  gentle- 
men in  their  arguments,  but  it  was  hoped  that  hereafter 
they  would  endeavor  to  avoid  repetitions,  and  the  un- 
necessary waste  of  time. 

Mr.  Hay  again  proposed  to  read  the  letter  of  the 
secretary  of  the  navy. 

Chief  Justice. — The  propriety  of  reading  depends  on 
its  authentication. 

Mr.  Hay. — I  suppose  the  gentlemen  wish  to  see  it, 
though  not  legally  authenticated. 

Mr.  Martin  expressed  a  doubt  whether  this  was  the 
same  order;  he  presumed  that  there  were  more  orders. 

Mr.  Randolph  (who  had  returned  into  court)  wished  to 
see  it,  in  order  to  ascertain  whether  it  was  the  same 
which  they  had  seen  in  The  Natchez  Gazette. 

Mr.  Hay  declared  his  belief  that  it  was  the  same,  but 
as  gentlemen  did  not  wish  to  hear  it  he  put  it  up  again. 

Mr.  Burr  addressed  the  court.  He  observed  that 
this  was  perhaps  the  most  proper  time  for  renewing  the 
motion  which  he  had  made  some  time  ago,  about  giv- 
ing more  specific  instructions  to  the  grand  jury  on  cer- 
tain points  of  evidence.  These  points  he  had  reduced 
to  writing,  in  the  form  of  abstract  propositions,  which  he 
would  take  the  liberty  of  reading  to  the  court ;  the  fol- 
lowing is  a  list  of  thpse  propositions,  with  the  authori- 
,  ies  cited  to  support  them  : 


1 66  TRIAL    OF    AARON    BURR. 

First.  That  the  grand  jury  can  not,  consistently  with 
their  oath  find  a  bill  except  on  such  testimony  as  would 
justify  a  petit  jury  to  find  the  prisoner  guilty.  Foster, 
232,  §8;  3  Institute,  25;  2  Id.,  384;  Dal  ton,  519;  2 
Judge  Wilsons  Works,  364  ;  3  St.  Tr.,  419,  420;  and  Sir 
John  Hawles'  Observations,  4^.  Tr.,  133  ;  4  Black.  ;  302- 
306,  2  Hale,  ch.  8,  61,  Wilson's  edition  with  Wilson's 
note;  2  /fa/^,  ch.  22,  157,  with  Wilson's  note;  2  Euno- 
mos  Diet.  §  39,  124,  5,  6,  ;  5  S/.  Tr.  3  ;  .fiwter,  232, 

§o 
o. 

Second.  That  no  testimony  or  witness  ought  to  go 
to  the  grand  jury,  but  what  is  legal  and  competent 
to  support  the  charge  about  which  the  inquiry  is  made. 
Danby's  case,  Leech,  443,  c.  187  ;  Dodd's  case,  Id.,  59,  c. 
77  ;  Commonwealth  of  Virginia  v.  Hopbam,  Warles  & 
Dtnvs,  before  the  general  court  at  Williamsburg. 

Third.  That  the  grand  jury  can  not  return  a  bill  for 
treason  for  levying  war  against  the  United  States,  unless 
they  have  two  witnesses  who  swear  to  the  overt  act  of 
the  treason  laid  in  the  indictment ;  both  which  wit- 
nesses are  believed  by  them.  East's  Crown  Law,  ch.  2, 
§64. 

That  both  must  be  believed.     3  St.  Tr.,  56. 

Fourth.  That  there  must  be  two  witnesses  to  the 
grand  jury  of  each  overt  act,  follows  also  as  a  conse- 
quence from  the  former  position,  that  they  must  have 
such  testimony  as  would  be  requisite  for  the  petit 
jury. 

Fifth.  That  the  grand  jury  can  not  find  a  bill  for 
treason  in  consequence  of  any  confessions  made,  though 
proved  by  two  witnesses.  Foster,  241  ;  4  Black. ;  Con- 
stitution of  the  United  States,  article  3,  §3 ;  Graydons 
Digest,  n;  Judge  Iredell's  charge,  Fries s  Trial,  171, 
1 72  ;  Easfs  Crown  Law,  96,  97. 

Sixth.  That  as  the  grand  jury  only  hear  evidence 
on  the  part  of  the  state,  if  upon  that  evidence  they 
entertain  a  doubt  of  the  truth  of  the  charge,  they  ought 
not  to  find  a  bill ;  as  the  presumption  is  ever  in  favor  of 
innocence.  I  Mac  N.,  2-  6. 

Seventh.  No  act  of  a  third  person  can  be  given  in 
evidence  against  the  accused  to  prove  him  guilty  of 
treason  or  of  a  misdemeanor  under  the  law  of  the  5th 


MOTION  TO  INSTRUCT  GRAND  JURY.    167 

June,  1794,  unless  that  act  is  proved  to  have  been  com- 
mitted by  the  advice,  command,  direction,  or  instigation 
of  the  accused,  if  done  in  his  absence,  or  if  done  in  his 
presence,  unless  it  be  proved  that  the  accused  was  aiding 
or  assisting. 

An  act  shall  bind  a  person  connected  with  the  act,  but 
the  declaration  shall  not  bind  him,  because  no  part  of 
the  act.  Mac  N.,  615,  616. 

Eighth.  The  declarations  of  others  can  not  be  given 
in  evidence  on  the  present  inquiry  to  support  the  charge 
of  treason  or  of  a  misdemeanor  under  the  act  of  congress 
1 5th  June,  1794,  unless  it  be  proven  that  the  accused  was 
present  and  assented  thereto. 

East,  96.  In  case  of  conspiracy,  confessions  good 
against  him  who  makes  them,  but  not  against  others, 
Peake,c}\.  i  ;  Admiss.  Hearsay — Kelyng,  18;  Mac  N.,  40, 
41.  Confessions  of  one  can  not  be  read  against  others. 
3  St.  Tr.,  57. 

A  relation  of  what  had  been  done,  no  evidence.  Mac 
N.,6i6. 

Declarations  of  others  are  not  evidence.  4  St.  Tr.  192- 
196. 

6  St.  Tr.,  218.  In  the  presence  of  others,  they  acqui- 
escing. Mac  N.,  621. 

Mr.  Hay  opposed  this  proceeding.  He  contended 
that  the  court  had  no  right  to  give  specific  instructions 
to  the  grand  jury  after  they  had  been  once  generally 
charged  by  the  court;  that  such  a  course  was  contrary 
to  all  law  and  all  precedent  ;  that  not  a  single  instance 
could  be  quoted  to  support  it ;  and  that  there  were 
cogent,  and  in  this  instance  particular  reasons  why  crim- 
inal prosecutions  should  be  suffered  to  progress  without 
these  interruptions.  He  further  contended  that  the  chief 
justice  had  anticipated  such  a  situation  ;  and  that  the 
language  in  his  charge  clearly  indicated  his  expectation 
that  bills  would  be  laid  before  the  grand  jury  on  the 
ground  of  treason  ;  and  that  under  this  expectation  the 
chief  justice  had  dilated  on  the  nature  of  treason,  and 
given  all  the  information  which  he  thought  material ; 
that  there  was  no  reason  at  all  why  Aaron  Burr  should 
enjoy  greater  privileges  than  any  other  man,  or  why  he 
should  rake  up  all  the  old,  musty,  and  absurd  doctrines 


168  TRIAL     OF    AARON    BURR. 

• 

of  antiquity,  and  have  them  enlisted  in  his  service ;  and 
that  he  stood  on  the  very  same  ground  as  any  other 
man.  That  perhaps  all  the  propositions  on  Mr.  Burr's 
list  would  not  be  wanting  at  all ;  or  if  there  should  be 
any  necessity  for  them,  that  these  questions  might  be 
discussed  as  they  successively  arose  ;  that  these  discus- 
sions would  necessarily  consume  much  of  his  own  time 
as  well  as  the  time  of  the  court,  which  might  probably 
be  devoted  to  more  useful  purposes;  and  after  all,  the 
grand  jury  might  refuse  any  instructions,  and  in  that 
case  how  could  they  be  controled  by  the  court  ?  If  the 
grand  jury  determined  to  pay  no  regard  to  it,  of  what 
avail  would  be  the  recommendation  of  the  court?  (for  it 
was  in  fact  no  more.)  And  if  they  were  to  find,  accord- 
ing to  their  own  opinions,  and  in  the  old  way,  how  could 
the  court  know  of  this  variation,  and  how  could  they 
rectify  it  ? 

Mr.  Botts  replied.  He  stated  that  the  gentleman  had 
demanded  precedents:  and  yet  it  was  but  the  other  day 
when  that  very  gentleman  had  inquired  why  we  so  con- 
stantly resorted  to  precedents,  and  why  we  did  not 
sometimes  consult  the  principles  of  common  sense  :  that 
the  grand  jury  were  not  that  lawless  mob  which  the  gen- 
tlemen had  seemed  to  represent  them  ;  and  that  they 
would  not  certainly  act  against  the  law  when  it  was  pro- 
perly expounded  to  them  by  the  court ;  that  although 
the  chief  justice's  charge  was  extremely  able,  yet  it  was 
impossible  that  it  could  be  so  comprehensive  as  it  might 
now  be  made  from  the  information  which  has  since 
occurred ;  and  that  the  very  necessity  of  giving  any 
charge  at  all,  showed  the  propriety  of  perfecting  it ;  that 
it  was  not  Mr.  Burr's  desire  to  consume  much  time,  as  it 
was  his  most  earnest  wish  to  end  at  once  the  bonds  of 
recognizance  and  the  public  prejudice  which  surrounded 
him  ;  and  that  they  were  even  willing  to  limit  their 
share  of  the  discussion  to  a  particular  time. 

The  chief  justice  said  that  it  was  usual  and  the 
best  course  for  the  court  to  charge  the  jury  generally 
at  the  commencement  of  the  term,  and  to  give  their 
opinion  on  incidental  points  as  they  arose,  when  the 
grand  jury  themselves  should  apply  to  them  for  informa- 
tion ;  that  it  was  manifestly  improper  to  commit  the 


MOTION   TO   INSTRUCT  GRAND  JURY.   169 

opinion  of  the  court  on  points  which  might  come  before 
them  to  be  decided  on  the  trial  in  chief;  that  he  had 
generally  confined  his  charges  to  a  few  general  points, 
without  launching  into  many  details;  one  reason  was, 
that  some  of  the  detailed  points  might  never  arise  during 
the  session  of  the  grand  jury,  and  any  instruction  on  them 
would  of  course  be  unnecessary  ;  another  was,  that  some 
of  these  points  might  be  extremely  difficult  to  be  decided, 
and  would  require  an  argument  of  counsel  ;  because 
there  was  no  judge  or  man  who  would  not  often  find  the 
solitary  meditations  of  his  closet  very  much  assisted  by 
the  discussions  of  others  ;  that  he  would  have  had  no 
difficulty,  however,  in  expanding  his  charge  if  he  had 
been  particularly  requested  to  do  it,  or  if  he  could  have 
anticipated  any  necessity  for  it,  and  that  he  would  have 
no  difficulty  in  giving  his  opinions  at  this  time  on  cer- 
tain points  on  which  he  could  obtain  a  discussion  by  the 
counsel,  provided  he  did  not  thereby  c'ommit  his  ques- 
tion on  the  trial  in  chief. 

Mr.  Burr  then  requested  him  to  inspect  the  list  of 
propositions,  and  the  authorities  referred  to  in  support 
of  them,  which  he  had  prepared  ;  he  might  then  deter- 
mine which  of  those  points  would  admit  of  the  delivery 
of  his  opinion,  and  which  would  not. 

SATURDAY,  June  i3th,  1807 

Mr.  Burr  thought  proper  to  mention  that  his  counsel 
had  understood  that  a  supplemental  charge  had  been 
written  by  the  court,  and  put  into  the  hands  of  the 
attorney  of  the  United  States,  and  that  it  was  to  be 
shown  to  his  counsel  before  it  was  delivered.  That  for 
want  of  time,  or  some  other  cause,  it  had  not  yet  been 
submitted  to  them.  The  court  had  yesterday  requested 
and  obtained  a  copy  of  his  propositions,  that  they  might 
judge  of  their  application,  and  if  satisfied  on  that  point 
that  they  might  give  additional  instructions  to  the  grand 
jury.  Though  the  court  might  not  at  first  have  per- 
ceived the  necessity  of  a  supplemental  charge,  yet  it 
must  now  appear  that  each  of  his  propositions  must 
come  before  the  grand  jury.  If  the  court  were  satisfied 
that  they  ought,  they  would  have  such  additional  instruc- 


1 7o  TRIAL    OF    AARON    BURR. 

tions  as  were  necessary;  and  if  they  had  doubts,  they 
would  require  an  argument.  He  was  ready  to  demon- 
strate the  truth  of  every  one  of  them.  That  he  was 
ready  to  argue  three  weeks  ago,  and  was  desirous  to  save 
time,  and  would  support  them  by  written  or  oral  argu- 
ments, as  .the  court  might  think  proper. 

The  Chief  Justice  stated  that  he  had  drawn  up  a 
supplemental  charge,  which  he  had  submitted  to  the 
attorney  for  the  United  States  ;  with  a  request  that  it 
should  also  be  put  into  the  hands  of  Mr.  Burr's  counsel ; 
that  Mr.  Hay  had,  however,  informed  him,  in  the  con- 
versation which  he  had  just  had  with  him,  that  he  had 
been  too  much  occupied  himself  to  inspect  the  charge 
with  attention,  and  deliver  it  to  the  opposite  counsel ; 
but  another  reason  was  that  there  was  one  point  in  the 
charge  which  he  did  not  fully  approve.  He  should  not, 
therefore,  deliver  his  charge  at  present,  but  should  re- 
serve it  until  Monday.  In  the  meantime  Mr.  Burr's  coun- 
sel have  an  opportunity  of  inspecting  it,  and  an  argu- 
ment might  be  held  on  the  points  which  had  produced 
an  objection  from  the  attorney  for  the  United  States. 

Mr.  E.  Randolph. — Is  it  the  wish  of  the  court  that  the 
argument  should  be  carried  on  orally,  or  in  writing? 

Chief  Justice. — I  am  willing  to  see  the  remarks,  on 
both  sides,  in  writing. 

Mr.  Hay  objected  to  this  method,  from  the  excessive 
labor  which  it  would  impose  upon  them  either  way. 

The  Chief  Justice  declared  that  it  was  perfectly  indif- 
ferent to  him. 

Mr.  Martin  assured  the  court  that  it  was  perfectly  con- 
venient to  him  to  argue  the  point  either  orally  or  in  writing. 

Mr.  Wtckham  stated  that  the  attorney  for' the  United 
States  wished  to  object  to  certain  propositions  which  Mr. 
Burr  had  submitted  to  the  court ;  that  he  was  ready  to  go 
into  the  discussion  immediately  ;  that  the  attorney  for  the 
United  States  preferred  an  argument  before  the  court  to 
one  in  writing;  and  that  this  was,  in  fact,  the  very  course 
which  Mr.  Burr's  counsel  had  first  recommended.  Mr. 
Wickham  hoped  that  this  supplemental  charge  would  be 
given  to  the  jury  before  the  witnesses  were  sent  up  ;  that 
the  counsel  for  the  prosecution  preferred  the  contrary, 
but  which  was,  in  fact,  the  most  improper  course. 


MOTION  TO  INSTRUCT  GRAND  JURY.  171 

The  Chief  Justice  observed  that  the  court  would  also 
have  wished  that  the  charge  should  have  been  delivered 
before  the  witnesses  were  sent  up  ;  but  that  it  was  almost 
indifferent  to  him  whether  the  testimony  was  submitted 
to  the  grand  jury  before  or  after  the  delivery  of  the 
charge ;  that  it  was  often  the  custom  for  the  petit  jury 
itself  to  hear  the  testimony  before 'the  law  was  ex- 
pounded, and  the  same  practice  might  extend  to  the 
grand  jury;  for  it  was  extremely  easy  for  them,  after 
they  had  heard  the  testimony,  to  apply  the  instructions 
of  the  court,  and  distinguish  those  parts  which  were 
admissible  from  those  that  were  not  so.  It  was  not,  for 
instance,  absolutely  necessary  for  them  to  know,  previous 
to  the  delivery  of  the  charge,  that  two  witnesses  were 
necessary  to  prove  the  overt  act.  When  the  charge  had 
been  delivered,  that  principle  would  apply  to  the  testi- 
mony which  they  had  actually  heard  ;  and  that  it  was 
desirable  that  though  the  charge  should  precede  the 
testimony,  yet  it  was  not  so  essential  as  to  interrupt  the 
proceedings. 

Mr.  Randolph  conceived  it  far  more  important  to  give 
the  supplemental  charge  before  than  after  the  exhibition 
of  the  testimony ;  that  with  one  set  of  principles  on 
their  mind  the  grand  jury  would  frequently  ask  ques- 
tions in  one  point  of  view,  which  they  would  not  under 
other  impressions  ;  and  that  the  supplemental,  like  the 
original,  charge  ought  to  precede  the  evidence. 

Mr.  Martin  observed  that  there  was  this  considerable 
difference  between  a  grand  and  a  petit  jury,  that  when  any 
doubt  arose  about  the  propriety  of  testimony  before  the 
petit  jury,  the  court  would  be  present  and  ready  to  de- 
cide ;  but  the  grand  jury  has  not  the  same  aid  of  the 
judgment  of  the  court  in  selecting  the  testimony. 

The  chief  justice  said,  that  the  necessity  of  giving  a 
supplemental  charge,  at  this  time,  was  not  so  manifest, 
as  in  his  original  charge  he  had  expressed  his  ideas  on 
the  nature  of  treason.  That  he  stated  this  crime  to  con- 
sist in  an  actual  "  levying  of  war,"  and  that,  of  course, 
the  grand. jury  would  have  to  inquire  into  the  existence 
of  overt  acts  ;  that,  from  this  statement,  it  would  readily 
occur  to  the  jury  that  no  matter  what  suspicions  were 
entertained,  what  plans  had  been  formed,  what  enter- 


T72  TRIAL     OF    AARON    BURR 

prizes  haa  been  projected,  there  could  be  no  treason 
without  an  overt  act,  and  without  some  overt  act,  no 
crime  of  treason  had  been  committed. 

The  discussion  of  this  question  was  at  length  waived, 
when  the  chief  justice  delivered  the  following  opinion  on 
the  motion  to  issue  a  subpcena  duces  tccum  directed  to 
the  president  of  the  United  States  : 

77/1?  Chief  Justice. — The  object  of  the  motion,  now  to 
be  decided,  is  to  obtain  copies  of  certain  orders,  under- 
stood to  have  been  issued  to  the  land  and  naval  officers 
of  the  United  States  for  the  apprehension  of  the  ac- 
cused, and  an  original  letter  from  General  Wilkinson  to 
the  president  in  relation  to  the  accused,  with  the  answer 
of  the  president  to  that  letter,  which  papers  are  supposed 
to  be  material  to  the  defense.  As  the  legal  mode  of 
effecting  this  object,  a  motion  is  made  for  a.subp(zna  duces 
iecum  to  be  directed  to  the  president  of  the  United 
States. 

In  opposition  to  this  motion  a  preliminary  point  has 
been  made  by  the  counsel  for  the  prosecution.  It  has 
been  insisted  by  them  that,  until  the  grand  jury  shall 
have  found  a  true  bill,  the  party  accused  is  not  entitled 
to  subpoenas  nor  to  the  aid  of  the  court  to  obtain  his 
testimony. 

It  will  not  be  said  that  this  opinion  is  now  for  the 
first  time  advanced  in  the  United  States  ;  but  certainly, 
it  is  now  for  the  first  time  advanced  in  Virginia.  So 
far  back  as  any  knowledge  of  our  jurisprudence  is  pos- 
sessed, the  uniform  practice  of  this  country  has  been 
to  permit  any  individual  who  was  charged  with  any 
crime  to  prepare  for  his  defense,  and  to  obtain  the  pro- 
cess of  the  court  for  the  purpose  of  enabling  him  so  to 
do.  This  practice  is  as  convenient  and  as  consonant  to 
justice,  as  it  is  to  humanity.  It  prevents,  in  a  great 
measure,  those  delays  which  are  never  desirable,  which 
frequently  occasion  the  loss  of  testimony,  and  which  are 
often  oppressive.  That  would  be  the  inevitable  conse- 
quence of  withholding  from  a  prisoner  the  process  of  the 
court,  until  the  indictment  against  him  was  found  by  the 
grand  jury.  The  right  of  an  accused  person  to  the  pro- 
cess of  the  court,  to  compel  the  attendance  of  witnesses, 
seems  to  follow  necessarily  from  the  right  to  examine 


OPINION    ON    MOTION    FOR    PAPERS.    173 

those  witnesses  ;  and,  wherever  the  right  exists,  it  would 
be  reasonable  that  it  should  be  accompanied  with  the 
means  of  rendering  it  effectual.  It  is  not  doubted  that 
a  person  who  appears  before  a  court  under  a  recogniz- 
ance, must  expect  that  a  bill  will  be  preferred  against 
him,  or  that  a.  question,  concerning  the  continuance  of 
the  recognizance,  will  be  brought  before  the  court.  In 
the  first  event,  he  has  the  right,  and  it  is  perhaps  his 
duty  to  prepare  for  his  defense  at  the  trial.  In  the  sec- 
ond event,  it  will  not  be  denied  that  he  possesses  the 
right  to  examine  witnesses  on  the  question  of  continuing 
his  recognizance.  In  either  case,  it  would  seem  reason- 
able that  he  should  be  entitled  to  the  process  of  the 
court,  to  procure  the  attendance  of  his  witnesses.  The 
genius  and  character  of  our  laws  and  usages  are  friendly, 
not  to  condemnation  at  all  events,  but  to  a  fair  and  im- 
partial trial ;  and  they  consequently  allow  to  the  accused 
the  right  of  preparing  the  means  to  secure  such  a  trial. 
The  objection  that  the  attorney  may  refuse  to  proceed 
at  this  time,  and  that  no  day  is  fixed  for  the  trial,  if  he 
should  proceed  presents  no  real  difficulty.  It  would  be 
a  very  insufficient  excuse  to  a  prisoner  who  had  failed 
to  prepare  for  his  trial,  to  say  that  he  was  not  certain 
the  attorney  would  proceed  against  him.  Had  the  in- 
dictment been  found  at  the  first  term,  it  would  have 
been  in  some  measure  uncertain,  whether  there  would 
have  been  a  trial  at  this,  and  still  more  uncertain  on 
what  day  that  trial  would  take  place;  yet  subpoenas 
would  have  issued  returnable  to  the  first  day  of  the  term  ; 
and  if  after  its  commencement,  other  subpoenas  had  been 
required,  they  would  have  issued  returnable  as  the  court 
might  direct.  In  fact,  all  process  to  which  the  law  has 
affixed  no  certain  return  day,  is  made  returnable  at  the 
discretion  of  the  court. 

General  priniciples,  then,  and  general  practice  are  in 
favor  of  the  right  of  every  accused  person,  so  soon  as  his 
case  is  in  court,  to  prepare  for  his  defense,  and  to  receive 
the  aid  of  the  process  of  the  court  to  compel  the  attend- 
ance of  his  witnesses. 

The  constitution  and  laws  of  the  United  States  will 
now  be  considered,  for  the  purpose  of  ascertaining  how 
they  bear  upon  the  question.  The  eighth  amendment 


174  TRIAL     OF    AARON    BURR. 

to  the  constitution  gives  to  the  accused,  "  in  all  criminal 
prosecutions,  a  right  to  a  speedy  and  public  trial,  and  to 
compulsory  process  for  obtaining  witnesses  in  his  favor." 
The  right,  given  by  this  article,  must  be  deemed  sacred 
by  the  courts,  and  the  article  should  be  so  construed  as 
to  be  something  more  than  a  dead  letter.  What  can 
more  effectually  elude  the  right  to  a  speedy  trial  than  the 
declaration,  that  the  accused  shall  be  disabled  from  pre- 
paring for  it  until  an  indictment  shall  be  found  against 
him  ?  It  is  certainly  much  more  in  the  true  spirit  of  the 
provision  which  secures  to  the  accused  a  speedy  trial, 
that  he  should  have  the  benefit  of  the  provision  which 
entitles  him  to  compulsory  process  as  soon  as  he  is 
brought  into  court. 

This  observation  derives  additional  force  from  a  con- 
sideration of  the  manner  in  which  this  subject  has  been 
contemplated  by  congress.  It  is  obviously  the  intention 
of  the  national  legislature,  that,  in  all  capital  cases,  the 
accused  shall  be  entitled  to  process  before  indictment 
found.  The  words  of  law  are,  "  and  every  such  person 
or  persons  accused  or  indicted  of  the  crimes  aforesaid 
(that  is  of  treason  or  any  other  capital  offense),  shall  be 
allowed  and  admitted  in  his  said  detense,  to  make  any 
proof  that  he  or  they  can  produce  by  lawful  witness  or 
witnesses,  and  shall  have  the  like  process  of  the  court 
where  he  or  they  shall  be  tried,  to  compel  his  or  their 
witnesses  to  appear  at  his  or  their  trial,  as  is  usually 
granted  to  compel  witnesses  to  appear  on  the  prosecution 
against  them." 

This  provision  is  made  for  persons  accused  or  indicted. 
From  the  imperfection  of  human  language  it  frequently 
happens  that  sentences  which  ought  to  be  the  most  ex- 
plicit are  of  doubtful  construction  ;  and  in  this  case  the 
words  "  accused  or  indicted,"  may  be  construed  to  be 
synonymous  to  describe  a  person  in  the  same  situation, 
or  to  apply  to  different  stages  of  the  prosecution.  The 
word  or  may  be  taken  in  a  conjunctive  or  a  disjunctive 
sense.  A  reason  for  understanding  them  in  the  latter 
sense  is  furnished  by  the  section  itself.  It  commences 
with  declaring  that  any  person  who  shall  be  accused  and 
indicted  for  treason,  shall  have  a  copy  of  the  indictment, 
and  at  least  three  days  before  his  trial.  This  right  is  ob- 


OPINION    ON    MOTION    FOR     PAPERS.  175 

viously  to  be  enjoyed  after  an  indictment,  and  therefore 
the  words  are  "  accused  and  indicted."  So,  with  respect 
to  the  subsequent  clause  which  authorizes  a  party  to 
make  his  defense,  and  directs  the  court  on  his  application 
to  assign  him  counsel.  The  words  relate  to  any  person 
accused  and  indicted.  But  when  the  section  proceeds 
to  authorize  the  compulsory  process  for  witnesses,  the 
phraseology  is  changed.  The  words  are  "  and  every  such 
person  of  persons  accused  or  indicted,"  &c.,  thereby  adapt- 
ing the  expression  to  the  situation  of  an  accused  person 
both  before  and  after  indictment.  It  is  to  be  remarked, 
too,  that  the  person  so  accused  or  indicted,  is  to  have 
"  the  like  process  to  compel  his  or  their  witnesses  to  ap- 
pear at  his  or  their  trial,  as  is  usually  granted  to  compel 
witnesses  to  appear  on  the  prosecution  against  him." 
The  fair  construction  of  this  clause  would  seem  to  be, 
that,  with  respect  to  the  means  of  compelling  the  at- 
tendance of  witnesses  to  be  furnished  by  the  court,  the 
prosecution  and  defense  are  placed  by  the  law  on  equal 
ground.  The  right  of  the  prosecutor  to  take  out  sub- 
pcenas,  or  to  avail  himself  of  the  aid  of  the  court  in  any 
stage  of  the  proceedings  previous  to  the  indictment,  is 
not  controverted.  This  act  of  congress,  it  is  true,  applies 
only  to  capital  cases  ;  but  persons  charged  with  offenses 
not  capital,  have  a  constitutional  and  a  legal  right  to  exam- 
ine their  testimony;  and  this  act  ought  to  be  considered 
as  declaratory  of  the  common  law  in  cases  where  this  con- 
stitutional right  exists. 

Upon  immemorial  usage,  then,  and  upon  what  is 
deemed  a  sound  construction  of  the  constitution  and  law 
©f  the  land,  the  court  is  of  opinion  that  any  person 
charged  with  a  crime  in  the  courts  of  the  United  States, 
has  a  right,  before  as  well  as  after  indictment,  to  the 
process  of  the  court  to  compel  the  attendance  of  his 
witnesses.  Much  delay  and  much  inconvenience  may  be 
avoided  by  this  construction  ;  no  mischief,  which  is  per- 
ceived, can  be  produced  by  it.  The  process  would  only 
issue  when,  according  to  the  ordinary  course  of  proceed- 
ing, the  indictment  would  be  tried  at  the  term  to  which 
the  subpcena  is  made  returnable  ;  so  that  it  becomes  in- 
cumbent on  the  accused  to  be  ready  for  his  trial  at  that 
term. 


176  TRIAL     OF    AARON    BURR. 

This  point  being  disposed  of,  it  remains  to  inquire, 
whether  a  subpoena  duces  tecitm  can  be  directed  to  the 
president  of  the  United  States,  and  whether  it  ought  to 
be  directed  in  this  case? 

This  question  orginally  consisted  of  two  parts.  It 
was  at  first  doubted  whether  a  subpoena  could  issue,  in 
any  case,  to  the  chief  magistrate  of  the  nation  ;  and  if  it 
could,  whether  that  subpoena  could  do  more  that  direct 
his  personal  attendance ;  whether  it  could  direct  him 
to  bring  with  him  a  paper  which  was  to  constitute  the 
gist  of  his  testimony.  While  the  argument  was  opening, 
the  attorney  for  the  United  States  avowed  his  opinion, 
that  a  general  subpoena  might  issue  to  the  president  ;  but 
not  a  subpoena  duccs  tecum.  This  terminated  the  argu- 
ment on  that  part  of  the  question.  The  court,  however, 
has  thought  it  necessary  to  state  briefly  the  foundation 
of  its  opinion  that  such  a  subpoena  may  issue. 

In  the  provisions  of  the  constitution  and  of  the  statute, 
which  give  to  the  accused  a  right  to  the  compulsory  pro- 
cess of  the  court,  there  is  no  exception  whatever.  The 
obligation,  therefore,  of  those  provisions  is  general ;  and 
it  would  seem  that  no  person  could  claim  an  exemption 
from  them,  but  one  who  would  not  be  a  witness.  At  any 
rate,  if  an  exception  to  the  general  principle  exist,  it 
must  be  looked  for  in  the  law  of  evidence.  The  excep- 
tions furnished  by  the  law  of  evidence  (with  one  only 
reservation)  so  far  as  they  are  personal,  are  of  those  only 
whose  testimony  could  not  be  received.'  The  single 
reservation,  alluded  to,  is  the  case  of  the  king.  Although 
he  may,  perhaps,  give  testimony,  it  is  said  to  be  incom- 
patible with  his  dignity  to  appear  under  the  process  of 
the  court.  Of  the  many  points  of  difference  which  exist 
between  the  first  magistrate  in  England,  and  the  first 
magistrate  of  the  United  States,  in  respect  to  the  per- 
sonal dignity  conferred  on  them  by  the  constitutions  of 
their  respective  nations,  the  court  will  only  select  and 
mention  two.  It  is  a  principle  of  the  English  constitu- 
tion that  the  king  can  do  no  wrong,  that  no  blame  can 
be  imputed  to  him,  that  he  can  not  be  named  in  de- 
bate. 

By  the  constitution  of  the  United  States,  the  president, 
as  well  as  every  other  officer  of  the  government,  may  be 


OPINION    ON    MOTION    FOR    PAPERS.   177 

impeached,  and    may  be  removed    from  office  on  high 
crimes  and  misdemeanors. 

By  the  constitution  of  Great  Britain,  the  crown  is  hered- 
itary, and  the  monarch  can  never  be  a  subject. 

By  that  of  the  United  States,  the  president  is  elected 
from  the  mass  of  the  people,  and,  on  the  expiration  of 
the  time  for  which  he  is  elected,  returns  to  the  mass  of 
the  people  again. 

How  essentially  this  difference  of  circumstances  must 
vary  the  policy  of  the  laws  of  the  two  countries,  in  refer- 
ence to  the  personal  dignity  of  the  executive  chief,  will 
be  perceived  by  every  person.  In  this  respect,  the  first 
magistrate  of  the  Union  may  more  properly  be  likened 
to  the  first  magistrate  of  a  state  ;  at  any  rate,  under  the 
former  confederation  ;  and  it  is  not  known  ever  to  have 
been  doubted  but  the  chief  magistrate  of  a  state  might 
be  served  with  a  subpoena  ad  testificandum. 

If,  in  any  court  of  the  United  States,  it  has  ever  been 
decided,  that  a  subpoena  can  not  issue  to  the  president, 
that  decision  is  unknown  to  this  court. 

If,  upon  any  principle,  the  president  could  be  construed 
to  stand  exempt  from  the  general  provisions  of  the  con- 
stitution, it  would  be,  because  his  duties,  as  chief  magis- 
trate, demand  his  whole  time  for  national  objects.  But 
it  is  apparent  that  this  demand  is  not  unremiting,  and, 
if  it  should  exist  at  the  time  when  his  attendance  on  a 
court  is  required,  it  would  be  sworn  on  the  return  of  the 
subpoena,  and  would  rather  constitute  a  reason  for  not 
obeying  the  process  of  the  court,  than  a  reason  against 
its  being  issued.  In  point  of  fact  it  can  not  be  doubted, 
that  the  people  of  England  have  the  same  interest  in  the 
service  of  the  executive  government,  that  is  of  the  cabinet 
counsel,  that  the  American  people  have  in  the  servict-  of 
the  executive  of  the  United  States,  and  that  their  duties 
areas  arduous  and  as  unremitting.  Yet  it  has  never  been 
alleged,  that  a  subpoena  might  not  be  directed  to  them. 
It  can  not  be  denied,  that,  to  issue  a  subpoena  to  a  per- 
son filling  the  exalted  station  of  the  chief  magistrate,  is 
a  duty  which  would  be  dispensed  with  much  more  che-r- 
fully  than  it  would  be  performed  ;  but,  if  it  be  a  duty,  the 
court  can  have  no  choice  in  the  case. 

If,  then,  as  is  admitted  by  the  counsel  for  the  United 


178  TRIAL     OF    AARON    BURR. 

States,  a  subpoena  may  issue  to  the  president,  the  accused 
is  entitled  to  it  of  course  ;  and,  whatever  difference  may 
exist  with  respect  to  the  power  to  compel  the  same  obe- 
dience to  the  process,  as  if  it  had  been  directed  to  a  pri- 
vate citizen,  there  exists  no  difference  with  respect  to  the 
right  to  obtain  it.  The  guard,  furnished  to  this  high 
officer,  to  protect  him  from  being  harassed  by  vexatious 
and  unnecessary  subpoena,  is  to  be  looked  for  in  the  con- 
duct of  a  court  after  those  subpoenas  have  issued  ;  not  in 
any  circumstance  which  is  to  precede  their  being  issued. 
If,  in  being  summoned  to  give  his  personal  attendance  to 
testify,  the  law  does  not  discriminate  between  the  presi- 
dent and  a  private  citizen,  what  foundation  is  there  for 
the  opinion,  that  this  difference  is  created  by  the  circum- 
stances that  his  testimony  depends  on  a  paper  in  /his 
possession,  not  on  facts  which  have  come  to  his  knowl- 
edge otherwise  than  by  writing?  The  court  can  perceive 
no  foundation  for  such  an  opinion.  The  propriety  of  in- 
troducing any  paper  into  the  case  as  testimony,  must  de- 
pend on  the  character  of  the  paper,  not  on  the  character 
of  the  person  who  holds  it.  A  subpoena  due ~es  tecum,  then, 
may  issue  to  any  person  to  whom  an  ordinary  subpoena 
may  issue,  directing  him  to  bring  any  paper  of  which  the 
party  praying  it  has  a  right  to  avail  himself  as  testimony  ; 
if,  indeed,  that  be  the  necessary  process  for  obtaining  the 
view  of  such  paper. 

When  this  subject  was  suddenly  introduced,  the  court 
felt  some  doubt  concerning  the  propriety  of  directing  a 
subpoena  to  the  chief  magistrate,  and  some  doubt,  also, 
concerning  the  propriety  of  directing  any  paper  in  his 
possession,  not  public  in  its  nature,  to  be  exhibited  in 
court.  The  impression,  that  the  questions  which  might 
arise  in  consequence  of  such  process,  were  more  proper 
for  discussion  on  the  return  of  the  process  than  on  its 
issuing,  was  then  strong  on  the  mind  of  the  judges ;  but 
the  circumspection  with  which  they  would  take  any  step, 
which  would  in  any  manner  relate  to  that  high  person- 
age, preventing  their  yielding  readily  to  those  impres- 
sions, and  induced  the  request,  that  those  points,  if  not 
admitted,  might  be  argued.  The  result  of  that  argu- 
ment is  a  confirmation  of  the  impression  originally  enter- 
tained. The  court  can  perceive  no  legal  objection  to 


OPINION    ON    MOTION    FOR    PAPERS.   179 

issuing  a  subpoena  duces  tecnm  to  any  person,  whatever^ 
provided  the  case  be  such  as  to  justify  the  process. 

This  is  said  to  be  a  motion  to  the  discretion  of  the 
court.  This  is  true.  But  a  motion  to  its  discretion  is  a 
motion,  not  to  its  inclination,  but  to  its  judgment ;  and 
its  judgment  is  to  be  guided  by  sound  legal  principles. 
A  subp&na  duces  tecum  varies  from  an  ordinary  subpoena 
only  in  this:  that  a  witness  is  summoned  for  the  purpose 
of  bringing  with  him  a  paper  in  his  custody.  In  some 
of  our  sister  states,  whose  system  of  jurisprudence  is 
erected  on  the  same  foundation  with  our  own,  this  pro- 
cess, we  learn,  issues  of  course.  In  this  case  it  issues,  not 
absolutely  of  course,  but  with  leave  of  the  court.  No 
case,  however,  exists,  as  is  believed,  in  which  the  motion 
has  been  founded  on  an  affidavit,  in  which  it  has  been 
denied,  or  in  which  it  has  been  opposed.  It  has  been 
truly  observed,  that  the  opposite  party  can  regularly 
take  no  more  interest  in  the  awarding  a  subpoena  duces 
tecum  than  in  the  awarding  of  an  ordinary  subpoena.  In 
either  case,  he  may  object  to  any  delay,  the  grant  of 
which  may  be  implied  in  granting  the  subpoena ;  but  he 
can  no  more  object  regularly  to  the  legal  means  of  ob- 
taining testimony,  which  exists  in  the  mind,  than  in  the 
papers  of  the  person  who  may  be  summoned.  If  no  in- 
convenience can  be  sustained  by  the  opposite  party,  he 
can  only  oppose  the  motion  in  the  character  of  an  ami- 
cus  curicz  ;  to  prevent  the  court  from  making  an  improper 
order,  or  from  burdening  some  officer,  by  compelling  an 
unnecessary  attendance.  This  court  would  certainly  be 
very  unwilling  to  say  that,  upon  fair  construction,  the 
constitutional  and  legal  right  to  obtain  its  process,  to 
compel  the  attendance  of  witnesses,  does  not  extend  to 
their  bringing  with  them  such  papers  as  may  be  material 
in  the  defense.  The  literal  distinction  which  exists  be- 
tween the  cases  is  too  much  attenuated  to  be  counte- 
nanced in  the  tribunals  of  a  just  and  humane  nation.  If, 
then,  the  subpoena  be  issued,  without  inquiry  into  the 
manner  of  its  application,  it  would  seem  to  trench  on  the 
privileges  which  the  constitution  extends  to  the  accused  ; 
it  would  seem  to  reduce  his  means  of  defense  within  nar- 
rower limits  than  is  designed  by  the  fundamental  law  of 
our  country,  if  an  overstrained  rigor  should  be  used  with 


i8o  TRIAL     OF    AARON    BURR. 

respect  to  his  right  to  apply  for  papers  deemed  by  him- 
self to  be  material.  In  the  one  case,  the  accused  is  made 
the  absolute  judge  of  the  testimony  to  be  summoned  ; 
if,  in  the  other,  he  is  not  a  judge,  absolutely  for  himself, 
bis  judgment  ought  to  be  controlled  only  so  far  as  it  is 
apparent  that  he  means  to  exercise  his  privileges,  not 
really  in  his  own  defense,  but  for  purposes  which  the 
court  ought  to  discountenance.  The  court  would  not 
lend  its  aid  to  motions  obviously  designed  to  manifest 
disrespect  to  the  governmant  ;  but  the  court  has  no  right 
to  refuse  its  aid  to  motions  for  papers  to  which  the  ac- 
cused may  be  entitled,  and  which  may  be  material  in  his 
defense. 

These  observations  are  made  to  show  the  nature  of  the 
discretion  which  may  be  exercised.  If  it  be  apparent 
that  the  papers  are  irrelative  to  the  case ;  or  that,  for 
state  reasons,  they  can  not  be  introduced  into  the  defense, 
the  subpoena  duces  tecum  would  be  useless.  But,  if  this  be 
not  apparent ;  if  they  may  be  important  in  the  defense  ;  if 
they  may  be  safely  read  at  the  trial ;  would  it  not  be  a 
blot  on  the  page  which  records  the  judicial  proceedings 
of  this  country,  if,  in  a  case  of  such  serious  import  as  this, 
the  accused  should  be  denied  the  use  of  them? 

The  counsel  for  the  United  States  take  a  very  different 
view  of  the  subject ;  and  insist  that  a  motion  for  process 
to  obtain  testimony  should  be  supported  by  the  same 
full  and  explicit  proof  of  the  nature  and  application  ofthat 
testimony,  which  would  be  required  jon  a  motion,  which 
would  delay  public  justice,  which  would  arrest  the  ordi- 
nary course  of  proceedings,  or  would,  in  any,  in  any  other 
manner  affect  the  rights  of  the  opposite  party.  In  favor 
of  this  position  has  been  urged  the  opinion  of  one,  whose 
loss  as  a  friend,  and  as  a  judge,  I  sincerely  deplore  ;  whose 
worth  I  feel,  and  whose  authority  I  shall  at  all  times 
greatly  respect.  If  his  opinion  were  really  opposed  to 
mine,  I  should  certainly  revise,  deliberately  revise,  the 
judgment  I  had  formed  :  but  I  perceive  no  such  opposi- 
tion. 

In  the  trials  of  Smith  and  Ogden,  the  court,  in  which 
Judge  Patterson  presided,  required  a  special  affidavit  in 
support  of  a  motion,  made  by  the  counsel  for  the  ac- 
cused, for  a  continuance,  and  for  an  attachment  against 


OPINION  ON  MOTION  FOR  PAPERS.        181 

witnesses  who  had  been  subpoenaed  and  had  failed  to  at- 
tend. 

Had  this  requisition  of  a  special  affidavit  been  made  as 
well  a  foundation  for  an  attachment  as  for  a  continuance, 
the  cases  would  not  have  been  parallel  ;  because  the  at- 
tachment was  considered  by  the  counsel  for  the  prosecu- 
tion merely  as  a  mean  of  punishing  the  contempt,  and 
a  court  might  certainly  require  stronger  testimony  to 
induce  them  to  punish  a  contempt,  than  would  be  re- 
quired to  lend  its  aid  to  a  party  in  order  to  procure  evi- 
dence in  a  cause.  But  the  proof  furnished  by  the  case 
is  most  conclusive,  that  the  special  statements  of  the 
affidavit  were  required  solely  on  account  of  the  contin- 
uance. 

Although  the  counsel  for  the  United  States  considered 
the  motion  for  an  attachment,  merely  as  a  mode  of  pun- 
ishing for  contempt,  the  counsel  for  Smith  and  Ogden 
considered  it  as  compulsory  process  to  bring  in  a  witness, 
and  moved  a  continuance  until  they  could  have  the 
benefit  of  this  process.  The  continuance  was  to  arrest 
the  ordinary  course  of  justice  ;  and,  therefore,  the  court 
required  a  special  affidavit,,showing  the  materiality  of  the 
testimony  before  this  continuance  could  be  granted. 
Pr  in  la  facie  evidence  could  not  apply  to  the  case;  and 
there  was  an  additional  reason  for  a  special  affidavit. 
The  object  of  this  special  statement  was  expressly  said 
to  be  for  a  continuance.  Golden  proceeded :  "  The 
present  application  is  to  put  off  the  cause  on  account  of 
the  absence  of  witnesses,  whose  testimony  the  defendant 
alleges  is  material  for  his  defense,  and  who  have  dis- 
obeyed the  ordinary  process  of  the  court.  In  compliance 
with  the  intimation  from  the  bench  yesterday,  the  defen- 
dant has  disclosed  by  the  affidavit  which  I  have  just 
read,  the  points  to  which  he  expects  the  witnesses  who 
have  been  summoned  will  testify. 

"  If  the  court  can  not,  or  will  not,  issue  compulsoiy 
process  to  bring  in  the  witnesses  who  are  the  objects  of 
this  application,  then  the  cause  will  not  be  postponed. 

"  Or,  if  it  appear  to  the  court,  that  the  matter  dis- 
closed by  the  affidavit  might  not  be  given  in  evidence,  if 
the  witnesses  were  now  here,  then  we  can  not  expect 
hat  our  motion  will  be  successful.  For  it  would  be  ab- 


1 82  TRIAL  OF  AARON  BURR. 

surd  to  suppose  that  the  court  will  postpone  the  trial  on 
account  of  the  absence  of  witnesses  whom  they  can  not 
compel  to  appear,  and  of  whose  voluntary  attendance  there 
is  too  much  reason  to  despair  ;  or,  on  account  of  the 
absence  of  witnesses,  who,  if  they  were  before  the  court, 
could  not  be  heard  on  the  trial."  (See  page  12  of  the 
Trials  of  Smith  and  Ogden.) 

This  argument  states,  unequivocally,  the  purpose  for 
which  a  special  affidavit  was  required. 

The  counsel  for  the  United  States  considered  the  sub- 
ject in  the  same  light.  After  exhibiting  an  affidavit  for 
the  purpose  of  showing  that  the  witnesses  could  not 
probably  possess  any  material  information,  Mr.  Standford 
said,  "  It  was  decided  by  the  court  yesterday,  that  it  was 
incumbent  on  the  defendent,  in  order  to  entitle  himself 
to  a  postponement  of  the  trial,  on  account  of  the 
absence  of  these  witnesses,  to  show  in  what  respect  they 
are  material  for  his  defense.  It  was  the  opinion  of  the 
court  that  the  general  affidavit  in  common  form,  would 
not  be  sufficient  for  this  purpose  ;  but  that  the  particu- 
lar facts  expected  from  the  witnesses  must  be  disclosed, 
in  order  that  the  court  might,  upon  those  facts,  judge 
of  the  propriety  of  granting  the  postponement."  (p.  27.) 

The  court  frequently  treated  the  subject  so  as  to  show 
the  opinion,  that  the  special  affidavit  was  required  only 
on  account  of  the  continuance :  but,  what  is  conclusive 
on  this  point  is,  that  after  deciding  the  testimony  of  the 
witnesses  to  be  such  as  could  not  be  offered  to  the  jury, 
Judge  Patterson  was  of  opinion,  that  a  rule,  to  show 
cause  why  an  attachment  should  not  issue,  ought  to  be 
granted.  He  could  not  have  required  the  materiality  of 
the  witness  to  be  shown  on  a  motion,  the  success  of 
which  did  not,  in  his  opinion,  in  any  degree  depend  on 
that  materiality ;  and  which  he  granted  after  deciding 
the  testimony  to  be  such  as  the  jury  ought  not  to  hear.  It 
is,  then,  most  apparent,  that  the  opinion  of  Judge  Patter- 
son has  been  misunderstood,  and  that  no  inference  can 
possibly  be  drawn  from  it,  opposed  to  the  principle  which 
has  been  laid  down  by  the  court.  That  principle  will 
therefore  be  applied  to  the  present  motion. 

The  first  paper  required  is  the  letter  of  General  Wilk- 
inson, which  was  referred  to  in  the  message  of  the  presi- 


OPINION  ON  MOTION  FOR  PAPERS.       183 

dent  to  congress.  The  application  of  that  letter  to  the  case 
is  shown  by  the  terms  in  which  the  communication  was 
made.  It  is  a  statement  of  the  conduct  of  the  accused, 
made  by  the  person  who  is  declared  to  be  the  essential 
witness  against  him.  The  order  for  producing  this  letter 
is  opposed, 

First,  Because  it  is  not  material  to  the  defense.  It  is 
a  principle,  universally  acknowledged,  that  a  party  has  a 
right  to  oppose  to  the  testimony  of  any  witness  against 
him,  the  declarations  which  that  witness  has  made,  at 
other  times,  on  the  same  subject.  If  he  possesses  this 
right,  he  must  bring  forward  proof  of  those  declarations. 
This  proof  must  be  obtained  before  he  knows  positively 
what  the  witness  will  say;  for,  if  he  waits  until  the  wit- 
ness has  been  heard  at  the  trial,  it  is  too  late  to  meet 
him  with  his  former  declarations.  Those  former  declara- 
tions, therefore,  constitute  a  mass  of  testimony  which  a 
party  has  a  right  to  obtain  by  way  of  precaution,  and  the 
positive  necessity  of  which  can  only  be  decided  at  the  trial. 

It  is  with  some  surprise  an  argument  was  heard  from 
the  bar,  insinuating  that  the  award  of  a  subpoena,  on  this 
ground,  gave  the  countenance  of  the  court  to  suspicions 
affecting  the  veracity  of  a  witness,  who  is  to  appear  on 
the  part  of  the  United  States.  This  observation  could 
not  have  been  considered.  In  contests  of  this  descrip- 
tion, the  court  takes  no  part  ;  the  court  has  no  right  to 
take  a  part.  Every  person  may  give  in  evidence,  testi- 
mony such  as  is  stated  in  this  case.  What  would  be  the 
feelings  of  the  prosecutor,  if,  in  this  case,  the  accused 
should  produce  a  witness  completely  exculpating  himself, 
and  the  attorney  for  the  United  States  should  be  arrested  in 
his  attempt  to  prove  what  the  same  witness  had  said  upon 
a  former  occasion,  by  a  declaration  from  the  bench,  that 
such  an  attempt  could  not  be  permitted,  because  it  would 
imply  a  suspicion  in  the  court,  that  the  witness  had  not 
spoken  the  truth?  Respecting  so  unjustifiable  an  inter- 
position but  one  opinion  would  be  formed. 

The  second  objection  is,  that  the  letter  contains  matter 
which  ought  not  to  be  disclosed. 

That  there  may  be  matter,  the  production  of  which 
the  court  would  not  require,  is  certain  ;  but  that,  in  a 
capital  case,  the  accused  ought,  in  som&  form,  to  have 


1 84  TRIAL  OF  AARON  BURR. 

the  benefit  of  it,  if  it  were  really  essential  to  his  defense, 
is  a  position  which  the  court  would  very  reluctantly  deny. 
It  ought  not  to  be  believed,  that  the  department,  which 
superintends  prosecutions  in  criminal  cases,  would  be  in- 
clined to  withhold  it.  What  ought  to  be  done  under 
such  circumstances,  presents  a  delicate  question,  the  dis- 
cussion of  which  it  is  hoped,  will  never  be  rendered 
necessary  in  this  country.  At  present  it  need  only  be 
said,  that  the  question  does  not  occur  at  this  time. 
There  is  certainly  nothing  before  the  court  which  shows 
that  the  letter  in  question  contains  any  matter  the  dis- 
closure of  which  would  endanger  the  public  safety.  If 
it  does  contain  such  matter,  the  fact  may  appear  before 
the  disclosure  is  made.  If  it  does  contain  any  matter, 
which  it  would  be  imprudent  to  disclose,  which  it  is  not 
the  wish  of  the  executive  to  disclose ;  such  matter,  if  it 
be  not  immediately  and  essentially  applicable  to  the 
point,  will,  of  course,  be  suppressed.  It  is  notveasy  to 
conceive,  that  so  much  of  the  letter  as  relates  to  the  con- 
duct of  the  accused  can  be  a  subject  of  delicacy  with  the 
president.  Everything  of  this  kind,  however,  will  have 
its  due  consideration  on  the  return  of  the  subpoena. 

Thirdly,  It  has  been  alleged  that  a  copy  may  be  re- 
ceived instead  of  the  original,  and  the  act  of  congress  has 
been  cited  in  support  of  this  proposition. 

This  argument  presupposes,  that  the  letter  required  is 
a  document  filed  in  the  department  of  state,  the  reverse 
of  which  may  be  and  most  probably. is  the  fact.  Letters, 
addressed  to  the  president,  are  most  usually  retained 
by  himself.  They  do  not  belong  to  any  of  the  depart- 
ments. But,  were  the  fact  otherwise,  a  copy  might  not 
answer  the  purpose.  The  copy  would  not  be-superior  to 
the  original,  and  the  original  itself  would  not  be  admitted 
if  denied,  without  proof  that  it  was  in  the  handwriting 
of  the  witness.  Suppose  the  case  put  at  the  bar  of  an 
indictment  on  this  letter  for  a  libel,  and  on  its  produc- 
tion it  should  appear  not  to  be  in  the  handwriting  of 
the  person  indicted.  Would  its  being  deposited  in  the 
department  of  state  make  it  his  writing,  or  subject  him 
to  the  consequence  of  having  written  it?  Certainly  not 
For  the  purpose,  then,  of  showing  the  letter  to  have  been 
written  by  a  particular  person,  the  original  must  be  pro- 


OPINION  ON  MOTION  FOR  PAPERS,       185 

duced,  and  a  copy  could  not  be  admitted.  On  the  con- 
fidential nature  of  this  letter  much  has  been  said  at  the 
bar,  and  authorities  have  been  produced,  which  appear 
to  be  be  conclusive.  Had  its  contents  been  orally  com- 
municated, the  person  to  whom  the  communications 
were  made,  could  not  have  excused  himself  from  detail- 
ing them,  so  far  as  they  might  be  deemed  essential 
in  the  defense.  Their  being  in  writing  gives  no  ad- 
ditional sanctity;  the  only  difference  produced  by  the 
circumstance  is,  that  the  contents  of  the  paper  must  be 
proved  by  the  paper  itself,  not  by  the  recollection  of  the 
witness. 

Much  has  been  said  about  the  disrespect  to  the  chief 
magistrate,  which  is  implied  by  this  motion,  and  by  such 
a  decision  of  it  as  the  law  is  believed  to  require. 

These  observations  will  be  very  truly  answered  by  the 
declaration,  that  this  court  feels  many,  perhaps  peculiar 
motives,  for  manifesting  as  guarded  a  respect  for  the 
chief  magistrate  of  the  Union  as  is  compatible  with  its 
official  duties.  To  go  beyond  these  would  be  to  exhibit 
a  conduct,  which  would  deserve  some  other  appellation 
than  the  term  respect. 

It  is  not  for  the  court  to  anticipate  the  event  of  the 
present  prosecution.  Should  it  terminate  as  is  expected 
on  the  part  of  the  United  States,  all  those  who  are  con- 
cerned in  it  should  certainly  regret  that  a  paper  which 
the  accused  believed  to  be  essential  to  his  defense,  which 
may,  for  aught  that  now  appears,  be  essential,  had  been 
withheld  from  him.  I  will  not  say  that  this  circumstance 
would  in  any  degree  tarnish  the  reputation  of  the  gov- 
ernment ;  but  I  will  say  that  it  would  justly  tarnish  the 
reputation  of  the  court,  which  had  given  its  sanction  to 
its  being  withheld.  Might  I  be  permitted  to  utter  one 
sentiment,  with  respect  to  myself,  it  would  be  to  deplore 
most  earnestly,  the  occasion  which  should  compel  me  to 
to  look  back  on  any  part  of  my  official  conduct  with  so 
much  self-reproach  as  I  should  feel,  could  I  declare  on 
the  information  now  possessed,  that  the  accused  is  not 
entitled  to  the  letter  in  question,  if  it  should  be  really 
important  to  him. 

The  propriety  of  requiring  the  answer  to  this  letter  is 
more  questionable.  It  is  alleged,  that  it  most  probably 


1 86  TRIAL  OF  AARON  BURR. 

communicates  orders  showing  the  situation  of  this  coun- 
try with  Spain,  which  will  be  important  on  the  misde- 
meanor. If  it  contain  matter  not  essential  to  the  de- 
fense, and  the  disclosure  be  unpleasant  to  the  executive, 
it  certainly  ought  not  to  be  disclosed.  This  is  a  point 
which  will  appear  on  the  return.  The  demand  of  the 
orders,  which  have  been  issued,  and  which  have  been, 
as  is  alleged,  published  by  The  Natchez  Gazette,  is  by  no 
means  unusual.  Such  documents  have  often  been  pro- 
duced in  the  courts  of  the  United  States,  and  the  courts 
of  England.  If  they  contain  matter  interesting  to  the 
nation,  the  concealment  of  which  is  required  by  the  public 
safety,  that  matter  will  appear  upon  the  return.  If  they 
do  not,  and  are  material,  they  may  be  exhibited. 

It  is  said,  they  can  not  be  material,  because  they  can 
not  justify  any  unlawful  resistance,  which  may  have  been 
employed  or  meditated  by  the  accused. 

Were  this  admitted,  and  were  it  also  admitted,  that 
such  resistance  would  amount  to  treason,  the  orders 
might  still  be  material:  because,  they  might  tend  to 
weaken  the  endeavor  to  connect  such  overt  act  with  any 
overt  act  of  which  this  court  may  take  cognizance.  The 
court,  however,  is  rather  inclined  to  the  opinion,  that  the 
subpoena,  in  such  case,  ought  to  be  directed  to  the  head 
of  the  department,  in  whose  custody  the  orders  are. 
The  court  must  suppose,  that  the  letter  of  the  secretary 
of  the  navy,  which  has  been  stated  by  the  attorney  for 
the  United  States,  to  refer  the  counsel  for  the  prisoner 
to  his  legal  remedy  for  the  copies  he  desired,  alluded  to 
such  a  motion  as  is  now  made. 

The  affidavit  on  which  this  motion  is  grounded  has 
not  been  noticed.  It  is  believed,  that  such  a  subpoena 
as  is  asked,  ought  to  issue,  if  there  exist  any  reason  for 
supposing  that  the  testimony  may  be  material,  and  ought 
to  be  admitted.  It  is  only  because  the  subpcena  is  to 
those  who  administer  the  'government  of  this  country, 
that  such  an  affidavit  was  required  as  would  furnish  prob- 
able cause  to  believe,  that  the  testimony  was  desired  for 
the  real  purposes  of  defense,  and  not  for  such  as  this 
court  will  forever  discountenance. 

When  the  chief  justice  had  concluded  his  opinion,  Mr 
Mac  Rae  addressed  the  court. 


INDIFFERENCE    OF    COUNSEL.  187 

/I  hope,  sir,  that  I  have  misunderstood  an  expression 
which  has  just  escaped  from  your  honor;  but  the  opin- 
ions of  those  gentlemen,  who  are  near  me,  completely 
confirm  my  own  conceptions.  Your  honor  has  declared, 
if  I  mistake  not,  that  "  if  the  present  prosecution  ter- 
minate as  is  wished  on  the  part  of  the  United  States." 
I  hope,  sir,  that  nothing  has  appeared  in  my  conduct, 
nothing  in  the  conduct  of  the  gentlemen  who  are  asso- 
ciated with  me  on  the  present  occasion,  and  nothing  in 
the  conduct  of  the  government,  to  produce  such  a  con- 
viction in  the  breast  of  the  court.  Permit  me,  sir,  to 
assure  this  court,  if  we  feel  any  sentiment  at  all,  that  it 
is  one  of  a  very  different  description.  The  impression 
which  has  been  thus  conveyed  by  the  court,  that  we  not 
only  wished  to  have  Aaron  Burr  accused,  but  that  we 
wished  to  convict  him,  is  completely  abhorrent  to  our 
feelings.  We  trust,  that  it  has  rather  accidentally  fallen 
from  the  pen  of  your  honor,  than  that  it  is  your  deliber- 
ate opinion.  We  wish  for  nothing,  sir,  but  a  fair  and 
competent  investigation  of  this  case.  It  is  far  from  our 
wishes  that  Aaron  Burr  should  be  convicted  but  upon 
the  most  satisfactory  evidence.  And  let  me  assure  this 
court,  that  nothing  would  more  severely  wound  my  feel- 
ings, than  if  you  or  any  other  man  should  suppose  it 
possible,  that  I  myself,  or  the  gentlemen  with  whom  I 
am  associated,  or  the  government  which  we  have  the 
honor  to  represent,  should  at  all  events,  desire  the  con- 
viction of  the  prisoner. 

The  Chief  Justice  replied,  that  it  was  not  his  intention 
to  insinuate,  that  the  attorneys  for  the  prosecution,  or 
that  the  administration,  had  ever  wished  the  conviction 
of  Colonel  Burr,  whether  he  was  guilty  or  innocent ;  that 
his  assertion  was  this  :  "  Gentlemen  had  so  often,  and  so 
uniformly  asserted,  that  Colonel  Burr  was  guilty,  and 
they  had  so  often  repeated  it  before  the  testimony  was 
perceived,  on  which  that  guilt  could  alone  be  substan- 
tiated, that  it  appeared  to  him  probable  that  they  were 
not  indifferent  on  the  subject." 

Mr.  Mac  Rea  begged  leave  to  point  out  to  the  court  a 
considerable  difference  between  the  opinions  and  wishes 
of  the  counsel  for  the  prosecution  ;  that  from  the  testi- 
mony which  they  had  examined,  they  thought  it  ex- 


i88  TRIAL     OP    AARON    BURR. 

tremely  probable  that  Aaron  Burr  was  really  guilty  ;  but 
that  this  was  very  different  from  wishing  to  find  him 
guilty,  or  to  convict  him  at  all  events. 

Mr.  Hay  observed,  that  his  own  conscience  was  satis- 
fied with  the  course  which  he  had  pursued  in  this  busi- 
ness ;  that  he  should  attempt  to  secure  the  same  sentiment 
by  his  future  deportment ;  and,  provided  he  enjoyed  that 
satisfaction',  he  was  completely  indifferent  to  the  opinion 
of  others ;  and  he  should  certainly  pursue  his  own  judg- 
ment. He  asked  whether  he  might  not  send  up  the 
witnesses  to  the  grand  jury? 

Mr.  Burr  then  pressed  upon  the  court  the  necessity  of 
giving  the  supplemental  charge  ;  that  it  would  be  of  con- 
siderable benefit  in  instructing  the  jury  to  separate  what 
was  proper  in  the  evidence  from  what  was  improper; 
that  if  the  charge  was  not  delivered  for  several  days,  the 
jury  might  in  the  meantime  be  receiving  very  false  im- 
pressions ;  and  that  their  minds  might  be  so  completely 
involved  in  these  impressions  that  it  would  be  impossible 
for  them  to  separate  them  from  their  decisions,  even  after 
the  delivery  of  the  charge.  He  conceived  that  the  court 
ought  either  to  prevent  the  witnesses  from  going  to  the 
grand  jury,  or  to  deliver  its  supplemental  charge. 

The  Chief  Justice  replied,  that  on  Monday  morning  he 
would  deliver  the  charge,  if  all  the  necessary  preliminary 
points  could  be  settled. 

Mr.  Hay  then  requested  the  clerk  to  sw«ear  four  of  the 
witnesses :  Thomas  Truxtun,  William  Eaton,  Benjamin 
Stoddert,  and  Stephen  Decatur,  who  were  accordingly 
sworn. 

Mr.  Burr  hoped,  that  the  court  would  immediately 
take  up  the  supplemental  charge  to  the  jury.  What 
was  the  objection  which  the  attorney  for  the  United 
Satets  has  submitted  to  your  honor,  and  on  which  you 
seemed  to  entertain  some  doubts  ? 

Chief  Justice. — It  is,  whether  the  statute  of  Edward 
VI.  is  now  in  force  in  this  country. 

Mr.  Randolph. — We  are  ready  on  that  point,  sir. 

The  clerk  then  proceeded  to  call  four  other  witnesses  to 
the  book  :  but  when  Erick  Bollman  appeared,  Mr.  Hay 
addressed  the  court  to  the  following  effect: 

Before  Mr.  Bollman  is  sworn,  I  must  inform  the  court 


DR.     BOLLMAWS    PARDON.  189 

of  a  particular,  and  not  an  immaterial-  circumstance. 
He,  sir,  has  made  a  full  communication  to  the  govern- 
ment of  the  plans,  the  designs,  and  views  of  Aaron  Burr. 
As  these  communications  might  criminate  Doctor  Bollman 
before  the  grand  jury,  the  president  of  the  United  States 
has  communicated  to  me  this  pardon  (holding  it  in  his 
hands)  which  I  have  already  offered  to  Doctor  Bollman. 
He  received  it  in  a  very  hesitating  manner  ;  and  I  think 
informed  me  that  he  knew  not  whether  he  should  or 
should  not  accept  it.  He  took  it  from  me,  however,  as 
he  informed  me  to  take  the  advice  of  counsel.  He  re- 
turned it  in  the  same  hesitating  manner;  he  would 
neither  positively  accept  nor  refuse  it.  My  own  opinion 
is,  that  Doctor  Bollman,  under  these  circumstances,  can 
not  possibly  criminate  himself.  This  pardon  will  com- 
pletely exonerate  him  from  all  the  penalties  of  the  law. 
I  believe  his  evidence  to  be  extremely  material.  In  the 
presence  of  this  court,  I  offer  this  pardon  to  him,  and  if 
he  refuses,  I  shall  deposit  it  with  the  clerk  for  his  use. 
Will  you  (addressing  himself  to  Doctor  Bollman)  accept 
this  pardon  ? 

Doctor  Bollman. — No.     I  will  not,  sir. 

Mr.  Hay  then  observed,  that  Doctor  Bollman  must 
be  carried  up  to  the  grand  jury  with  an  intimation  that 
he  had  been  pardoned. 

Mr.  Martin. — It   has  always  been    Doctor  Bollman's 
intention  to  refuse  this  pardon  :  but  he  has  not  positively 
refused  it  before,  because  he  wished  to  have  this  oppor- 
tunity of  publicly  rejecting  it. 
.Several  other  witnesses  were  sworn. 

Mr.  Martin  did  not  suppose,  that  the  pardon  was  real 
or  effectual ;  if  he  made  any  confessions  before  the  grand 
jury,  they  might  find  an  indictment  against  him,  which 
would  be  valid  notwithstanding  the  pardon ;  that  the 
pardon  could  not  be  effectual  before  it  was  pleaded  to  an 
indictment  in  open  court. 

Mr.  Hay  inquired,  whether  Doctor  Bollman  might  not 
go  to  the  grand  jury? 

The  Chief  Justice  suggested,  that  it  would  be  better  to 
settle  the  question  about  the  validity  of  the  pardon  be- 
fore he  was  sent  to  the  grand  jury. 

Mr.  Hay. — I  am  anxious  to  introduce  the  evidence  be- 


190  TRIAL  OF  AARON  BURR. 

fore  the  grand  jury  in  a  chronological  order,  and  the 
suspension  of  Doctor  Bollman's  testimony  will  make  a 
chasm  in  my  arrangement.  He  added  that,  however, 
it  was  not  very  important  whether  he  was  sent  now  or 
some  time  hence  to  the  grand  jury. 

Mr.  Martin. — Doctor  Bollman  is  not  pardoned  ;  and 
no  man  is  bound  to  criminate  himself. 

The  Chief  Justice  required  his  authorities. 

Mr.  Martin. — I  am  prepared  to  show,  that  a  party  even 
possessed  of  a  pardon  is  still  indictable  by  the  grand  jury, 
unless  he  has  pleaded  it  in  court. 

The  other  witnesses  were  sent  to  the  grand  jury,  and 
Doctor  Bollma'n  was  suspended. 

Four  other  witnesses  were  then  sworn. 

Mr.  Hay. — I  again  propose  to  send  Doctor  Bollman  to 
the  grand  jury. 

At  this  time  the  marshal  entered,  and  Mr.  Hay  informed 
the  court,  that  the  grand  jury  had  sent  for  the  article  of 
the  constitution  and  the  laws  of  congress  relating  to  trea- 
son, and  the  law  relating  to  the  misdemeanor. 

Jacob  Dunbaugh  was  sworn  and  sent  to  the  grand 
jury. 

Some  desultory  conversation  here  ensued  between  the 
bar  and  the  court  respecting  Doctor  Bollman,  when  Mr. 
Hay  addressed  the  opposite  counsel :  Are  you  then  will- 
ing to  hear  Doctor  Bollman  indicted?  Take  care  in  what 
an  awful  condition  you  are  placing  this  gentleman. 

Mr.  Martin. — Doctor  Bollman,  sir,  has  lived  too  long  to 
be  alarmed  by  such  menaces.  He  is  a  man  of  too  much 
honor  to  trust  his  reputation  to  the  course  which  you 
prescribe  for  him. 

The  *Chief  Justice.—  There  can  be  no  question,  but 
Doctor  Bollman  can  go  up  to  the  jury  :  but  the  question 
is,  whether  he  is  pardoned  or  not  ?  If  the  executive 
should  refuse  to  pardon  him,  he  is  certainly  not  pardoned. 

Mr.  Martin. — But  there  can  be  no  doubt,  if  he  chooses 
to  decline  his  pardon,  that  he  stands  in  the  same  situation 
with  every  other  witness,  who  can  not  be  forced  to  crim- 
inate himself. 

Some  desultory  conversation  here  ensued,  when  Mr. 
Hay  observed,  that  he  should  extremely  regret  the  loss 
of  Doctor  Bollman's  testimony.  He  believed  it  to  be 


DR.  BOLLMAN' S  PARDON.  191 

material.  He  trusted  that  he  should  obtain  it,  however 
reluctantly  given.  The  court  would  perceive  that  Doc- 
tor Bollman  now  possessed  so  much  zeal  as  even  to  en- 
counter the  risk  of  an  indictment  for  treason.  Whether 
he  should  appear  before  the  grand  jury,  under  the  cir- 
cumstance of  a  pardon  being  annexed  to  his  name,  might 
hereafter  become  the  object  of  a  distinct  inquiry.  In 
the  meantime,  he  might  go  up  without  any  such  notifi- 
cation. 

The  counsel  of  Mr.  Burr  acquiesced. 

Chief  Justice. — Whether  he  be  really  pardoned  or  not, 
I  can  not,  at  present,  declare.  I  must  take  time  to  de- 
liberate. 

Mr.  Hay. — Categorically  then  I  ask  you,  Mr.  Bollman, 
do  you  accept  your  pardon  ? 

Mr.  Bollman. — I  have  already  answered  that  question 
several  times.  I  say  no.  I  repeat,  that  I  would  have  re- 
fused it  before,  but  that  I  wished  this  opportunity  of 
publicly  declaring  it. 

Mr.  Hay. — If  the  grand  jury  have  any  doubts  about 
the  questions  that  they  put  to  Doctor  Bollman,  they  can 
apply  to  the  court  for  instructions.  I  assert,  sir,  that 
Mr.  Bollman  is  a  pardoned  man.  I  wish  the  opposite 
counsel  to  prove  that  he  is  not.  I  therefore  move,  sir, 
that  he  be  sent  up  to  the  grand  jury,  certified  by  you 
that  he  is  pardoned.  I  make  this  motion,  that  gentle- 
men, who  wish  to  discuss  the  question,  may  have  an  op- 
portunity of  adducing  their  arguments. 

Mr.  Williams,  counsel  for  Mr.  Bollman. — There  are 
three  questions  to  be  decided.  1st,  Whether  a  witness  be 
bound  to  answer  any  questions,  which  tend  to  criminate 
himself,  or  afford  a  clue  to  evidence  for  that  purpose? 
2d,  The  operation  of  a  pardon,  whether  it  change  the 
question  ?  but  in  this  case,  it  having  been  refused,  the 
court  can  not  notice  it.  3d,  Who  is  to  be  the  judge,  the 
witness  or  the  court,  as  to  the  propriety  of  answering  the 
question  ? 

On  the  first  question  Mr.  Williams  laid  down  the  fol- 
lowing propositions  :  1st,  The  rule  of  law  is,  that  no  man 
shall  be  bound  to  answer  any  question  which  shall  accuse 
himself. — i  Mac  Nally's  Ev.  256  ;  2  Haw.  c.  46.  2d,  He 
shall  not  be  bound  to  answer  any  questions  which  shall 


192  TRIAL  OF  AARON  BURR. 

accuse  himself  of  a  misdemeanor. — I  Mac  Nal.  256.  3d, 
He  shall  not  be  called  upon  to  caluminate  himself. — i 
Mac  Nal.  256;  2  State  Trials,  822.;  1017  to  1038,  Tabs- 
borough's  case.  4th,  He  is  not  to  defame  himself. — I  Mac 
Nal.  256,  258  ;  2  State  Trials,  439.  5th,  Not  to  answer  en- 
snaring questions. — Mac  Nal.  256.  6th,  To  ask  a  man  if 
he  is  a  Roman  catholic  is  not  permitted. — Mac  Nal.  257  ; 
9  State  Trials,  414  ;  2  Dougl.  593.  7th,  Not  bound  to  an- 
swer any  question  which  tends  to  criminate  himself. — 
Mac  Nal.  257  ;  4  State  Trials.  605,  606.  8th,  The  case  of. 
Gooseley  in  this  court,  upon  the  trial  of  Reynolds;  he 
was  called  as  a  witness,  but  not  compelled  to  criminate 
himself, — had  been  acquitted  the  day  before  by  the  grand 
jury.  So  i  Black.  Rep.  27. 

As  to  the  second  question,  the  rule  of  law  is  the  same, 
even  if  the  man  be  pardoned.  1st,  A  witness,  although 
pardoned,  shall  not  be  bound  to  calumniate  himself,  for 
the  pardon  having  placed  him  in  statu  quo,  no  question 
shall  be  asked  him,  which  tends  to  make  him  contempti- 
ble, or  do  away  the  benefit  of  the  pardon. — i  Mac  Nal. 
256;  2  State  Trials,  822,  1035.  If  Doctor  Bollman  were 
bound  to  acknowledged  himself  acquainted  with  any 
treason,  he  was  guilty  of  a  very  high  misdemeanor,  and 
therefore  it  would  do  away  any  benefit  from  the  pardon. 
But  the  court  can  not  notice  a  pardon,  unless  it  be  a 
pardon  by  statute  ;  for  if  under  great  seal  and  accepted, 
yet  it  would  be  error  in  the  court  to  allow  if  not  pleaded 
— 2  Hawk.  ch.  37,  sec.  59.  64,  65  ;  5  Bac.  294.  If  party  only 
entitled  upon  pleading  it,  then  if  he  refuse,  court  can 
not  take  notice  of  it.  Here  party  refusing  to  accept, 
court  must  say  that  he  is  not  pardoned  ;  for  until  it  is 
pleaded,  party  liable,  is  to  be  punished.  For  if  he  plead 
not  guilty,  the  court  will  not  allow  him  to  plead  it  after- 
wards.— 2  Hawk.  ch.  37,  sec.  59 ;  Bac.  294. 

As  to  the  third  question,  the  witness  must  be  the 
judge  of  necessity:  1st,  Because  he  can  only  know  what 
the  answer  is,  and  the  bearing  it  will  have.  2d,  If  the 
court  do  decide  they  must  know  what  would  be  the 
answer ;  and  to  get  that  from  the  witness  would  criminate 
himsel-f,  which  I  have  shown  he  is  not  bound  to  do. 

If  it  be  objected,  that  by  this  means,  no  witness  would 
give  evidence  against  the  accused,  it  may  be  answered, 


DR.  BOLLMAX'S  PARDON.  193 

1st,  The  refusal  is  upon  oath,  because  he  affirms  that  to 
answer  it  would  be  to  criminate  himself.  2d,  You  have 
the  same  obligation  on  him  to  answer  that  truly,  as  to 
speak  truth  upon  any  other  subject.  3d,  If  he  perjure 
himself  in  that,  he  would  certainly  do  it  to  get  clear  of 
giving  evidence  against  the  accused.  It  is  his  privilege 
not  to  answer  any  question  having  that  tendency.  This 
rule  is  upon  the  following  authorities  :  The  court  in  a 
case,  in  1743,  in  4  State  Trials,  414,  note,  states,  to  wit, 
"  If  you  think  it  will  criminate  yourself,  you  need  not 
answer  it." — I  Mac  Nal.  257-8.  It  is  put  to  the  witness 
and  not  to  the  court,  because  he  knew  what  was  to  be 
the  answer.  If  it  be  objected,  that  nothing  is  evidence 
against  him,  which  he  may  say  on  his  oath,  the  answer 
is,  that  it  has  been  otherwise  decided. — 2  Doug.  398. 

Mr.  Martin  would  merely  suggest  a  few  additional 
authorities.  Among  these  were  5  Bac.  p.  293  ;  2  Hawkins, 
ch.  57,  p.  59,  60,  65.  Mr.  Martin  contended;  that  these 
authorities  demonstrated  that  there  were  two  kinds  of 
pardons  in  England  ;  one  by  parliament,  and  the  other 
under  the  great  seal.  That  the  first  exempted  an  indi- 
vidual from  the  cognizance  of  the  court  as  to  the  partic- 
ular crime  for  which  he  might  stand  charged  :  but  that 

o  o 

the  latter  was  no  bar  to  a  judicial  prosecution  ;  and  was 
not  indeed  effectual  until  it  had  been  pleaded  and  allowed 
in  court.  Mr.  Martin  also  quoted  an  authority  from 
Salkeld  to  show  in  corroboration  of  Mr.  Williams's  posi- 
tion, that  no  witness,  however  exempted  from  the  charge 
and  necessity  of  criminating  himself — however  responsi- 
ble on  that  account  to  the  law — can  be  made  to  discredit 
himself  by  his  own  testimony. 

Mr.  Williams  also  quoted  another  authority,  to  the 
same  effect,  from  page  258  of  Mac  Nally's  Evidence. 

Mr.  Mac  Rae. — It  is  extremely  uncertain,  sir,  whether 
Mr.  Bollman  will  or  will  not  answer  the  questions,  which 
may  be  propounded  to  him  by  the  grand  jury.  If  he  be 
the  very  honorable  man,  whom  these  gentlemen  have 
represented,  he  certainly  will  not  refuse  to  answer.  But 
if  he  do  refuse,  it  can  only  be  upon  the  ground  that  he 
is  really  a  criminal.  It  is  not,  therefore,  necessary  for 
us  to  determine  this  point  at  the  present  time.  It  is 
not  necessary  to  decide  whether  Doctor  Bollman  is  or  is 
13 


194  TRIAL  OF  AARON  BURR. 

not  a  pardoned  man.  We  do  sincerely  hope,  that  ne 
will  appear  in  the  character  of  an  honorable  man ;  and 
not  refuse  to  answer  the  interrogatories  of  the  grand 
jury.  But  if  he  should  pursue  that  course,  it  will  be 
then  time  enough  for  us  to  bring  this  discussion  before 
the  court. 

Mr.  Hay. — The  proposition  which  I  had  stated,  seems 
to  me  to  be  so  evident,  as  to  require  little  argument.  I 
consider  Doctor  Bollman  as  a  pardoned  man  ;  and  there- 
fore, I  desired  that  the  court  should  certify  that  fact  for 
the  instruction  of  the  grand  jury.  Gentlemen,  however, 
seem  themselves  to  concede  the  very  point  for  which  we 
are  contending.  Why  do  they  so  much  expatiate  on  the 
consequences  of  a  pardon,  if  they  do  not  consider  that 
one  has  been  already  established?  Why  do  they  wish  to 
screen  Doctor  Bollman,  under  the  plea,  that  he  can  not  be 
made  to  defame  himself,  unless  they  consider  him  not 
sufficiently  secured  by  the  possession  of  a  pardon  ?  As  to 
the  effect  of  a  pardon,  it  is  a  distinct  question,  on  which 
the  court  may  hereafter  instruct  the  grand  jury.  But  at 
present,  I  wish  the  court  merely  to  certify  that  he  is  psr- 
doned. 

Mr.  Martin  replied,  that  if  the  gentleman  had  attended 
to  his  argument,  he  would  have  seen  that  most  of  his 
authorities  had  borne  upon  the  existence  of  a  pardon, 
and  not  upon  the  effects  of  one. 

Chief  Justice. — Have  any  of  you  authorities  to  show 
when  the  pardon  operates. 

Mr.  Martin. — Certainly  from  the  time  of  pleading. 

Chief  Justice. — You  mistake  my  question  :  suppose 
the  pardon  to  be  lost,  is  it  then  valid  ? 

Mr.  Martin. — If  it  be  proved,  that  he  had  pleaded  it 
to  an  indictment,  I  presume  an  exemplification  of  it 
would  answer  every  purpose. 

As  another  reason,  sir,  why  Doctor  Bollman  has  refused 
this  pardon,  perrrit  me  to  say,  that  it  would  be  considered 
as  an  admission  of  guilt.  Doctor  Bollman  does  not  ad- 
mit that  he  has  been  guilty.  He  does  not  consider  a 
pardon  as  necessary  for  an  innocent  man.  Doctor  Boll- 
man, sir,  knows  what  he  has  to  fear  from  the  prosecu- 
tion of  an  angry  government:  but  he  will  brave  it  all. 
The  man  who  did  so  much  to  rescue  the  Marquis  La 


WITNESSES  TO   CHARGE  OF   TREASON.  195 

Fayette  from  his  imprisonment,  and  who  has  been  known 
at  so  many  courts,  bears  too  great  a  regard  for  his  repu- 
tation, to  wish  to  have  it  sounded  throughout  Europe 
that  he  was  compelled  to  abandon  his  honor  through 
a  fear  of  unjust  persecution. 

After  some  desultory  conversation,  Doctor  Bollman 
was  sent  up  to  the  grand  jury  without  any  particular 
notification.  The  questions  whether  he  be  pardoned, 
and  of  course  how  far  he  may  be  called  upon  to  disclose 
all  that  he  knows,  were  reserved  for  future  discussionand 
decision. 

Mr.  Hay  requested  leave  to  inform  the  grand  jury 
that  fatigue  alone  had  prevented  General  Wilkinson  from 
attending  them  on  that  day ;  but  that  he  should  appear 
before  them  on  Monday. 

Mr.  Botts  then  observed,  that  there  was  one  point  in 
the  supplemental  charge,  which  he  wished  to  notice.  In 
one  part  of  the  charge,  the  clause  of  the  constitution 
relative  to  treason  is  quoted  ;  which  clause  recognizes 
the  necessity  of  two  witnesses  to  prove  an  overt  act. 
In  a  subsequent  part,  there  seems  to  be  an  implication 
that  one  witness  to  an  overt  act  is  sufficient.  How  was 
this  seeming  contrariety  to  be  explained  ? 

Chief  Justice. — Though  the  constitution  declares  that 
two  witnesses  are  necessary  to  produce  conviction,  yet 
it  may  not  be  so  strictly  and  absolutely  necessary  to 
authorize  an  indictment  being  found  a  true  bill.  My 
present  impression  is,  that  though  there  must  be  be  two 
witnesses  to  the  general  charge  of  treason,  yet  that  one 
witness  may  be  sufficient  to  prove  one  act,  and  another 
to  prove  another.  The  Chief  Justice  quoted  the  statutes 
of  Edward  VI.  The  law  books  made  this  discrimination 
between  a  trial  and  an  indictment. 

Mr.  Hay. — There  is  one  important  question  worthy  of 
our  consideration.  In  your  supplemental  charge,  sir, 
you  have  referred  to  the  statute  of  Edward  VI.  But  no 
such  statute  is  now  in  force  here.  A  general  law  of  the 
Virginia  legislature,  passed  several  years  ago,  swept  off 
all  the  British  laws  ;  and  then  they  set  to  re-enacting  such 
as  were  congenial  with  our  form  of  government.  But 
this  statute  was  certainly  in  force  at  the  commencement 
of  our  revolution  ;  and  the  question  is  whether,  if  it  were 


r96  TRIAL     OF    AARON    BURR. 

in  force  then,  it  can  be  so  considered  now.  Do  gentlemen 
contend,  that  we  are  bound  by  a  statue,  which  the  gov- 
ernment has  not  adopted  ? 

At  the  close  of  the  court,  the  Chief  Justice  observed, 
that  he  had  explained  the  sense  in  which  the  words  which 
had  been  remarked  on  by  Mr.  Mac  Rae,  had  been  em- 
ployed ;  that  he  had  no  desire  that  they  should  remain  in 
the  written  opinion  ;  that  he  did  not  perceivq  that  they 
were  calculated  to  excite  any  feeling,  or  liable  to  be  so 
misunderstood;  but  as  it  was  not  his  intention  to  convey 
the  idea,  that  a  conviction  in  any  event,  right  or  wrong, 
was  wished ;  and  as  that  idea  had  been  inferred,  and 
might  hereafter  be  attached  to  them,  by  those  who  might 
see  the  opinion  without  the  explanatory  words,  he  had 
expunged  them. 

MONDAY,  JUNE  isth,  1807. 

General  Wilkinson  was  sworn,  and  sent  to  the  grand 
jury,  with  a  notification  that  it  would  facilitate  their  in- 
quiries if  they  would  examine  him  immediately. 

Mr.  Wickham  stated,  that  as  the  indictments  were  now 
pending  before  the  grand  jury,  it  was  necessary  to  recall 
to  the  memory  of  the  court,  a  circumstance  which  had 
been  early  suggested,  that  a  number  of  improper  papers 
might  be  exhibited  before  the  grand  jury,  which  ought 
to  be  prevented  by  the  court ;  that  the  attorney  for  the 
United  States  had  pledged  himself  to  send  up  no  papers 
which  had  not  previously  passed  the  inspection  of  the 
court :  but  it  had  since  occurred  to  Colonel  Burr's  coun- 
sel, that  the  witnesses  themselves  might  carry  up  such 
papers,  which  would  defeat,  and  render  of  no  avail  the 
promise  of  the  attorney;  that  it  would  be  changing  the 
duties  of  a  witness,  which  were  to  give  testimony,  not  to 
carry  papers.  Finding  that  nothing  could  be  done  with- 
out an  application  to  the  court,  Mr.  Wickham  sub- 
mitted to  them,  whether  they  ought  not  to  instruct  the 
grand  jury  to  receive  no  papers>  but  through  the  medium 
of  the  court. 

Mr.  Hay  said,  that  the  witnesses  would  not  deliver  any 
papers  ;  that  he  hoped  the  court  would  not  act  upon  a 
mere  suspicion,  that  the  witnesses  would  carry  up  im- 


PAPERS     TO     GRAND    JURY.  197 

proper  papers  ;  but  that  it  was  extremely  probable,  that 
General  Wilkinson,  in  delivering  his  evidence  before  the 
grand  jury,  might  find  it  necessary  to  refer  to  certain 
letters  which  he  had  received,  and  to  papers  and  docu- 
ments relative  to  these  mysterious  transactions,  in  order 
to  refresh  his  memory.  That  he  would  not  produce  these 
as  distinct  and  substantive  evidence  ;  but  as  so  many 
private  memoranda,  in  order  to  strengthen  his  recollection 
of  the  history  of  those  transactions;  and  to  enable  him 
to  give  a  more  connected  and  full  narrative.  Mr.  Hay 
hoped  that  after  the  splendid  example  of  patience,  which 
the  grand  jury  had  displayed,  they  would  not  be  inter- 
rupted in  the  examination  now  commenced;  but  that  he 
had  no  objection  to  the  court  sending  up  by  word,  or  by 
writing,  such  instructions  to  them  on  this  subject  as  might 
be  deemed  proper. 

Mr.  Botts  confessed,  that  after  what  had  passed,  this 
opposition  surprised  him.  On  a  former  day,  he  under- 
stood that  it  was  agreed,  that  no  papers  should  be  sent 
to  the  grand  jury,  but  such  as  had  been  inspected  by  the 
court. 

Mr.  Hay  begged  leave  to  explain.  He  had  promised, 
before  the  arrival  of  General  Wilkinson,  to  send  up  no 
papers  without  the  inspection  of  the  court.  That  he  had 
at  that  time,  several  authenticated  papers,  and  several 
affidavits  ;  and  that  he  had  an  impression  (though  not  a 
very  decided  one)  that  they  ought  not  to  be  submitted 
to  the  grand  jury.  At  that  time  gentlemen  seemed  to 
apprehend,  that  certain  papers  and  cyphered  letters  were 
to  be  sent  up  to  the  grand  jury,  without  any  previous 
motion.  He  had  promised,  and  he  would  still  pledge 
himself,  to  avoid  this  course.  But  it  might  happen  that 
General  Wilkinson  had  various  papers  to  connect,  explain, 
and  enlarge  his  narrative.  If  General  Wilkinson  had 
brought  these  papers  from  New  Orleans,  and  now  pro- 
duced them  before  the  grand  jury,  in  order  to  refresh  his 
memory,  and  enable  him  to  explain  and  amplify  his  own 
evidence,  it  would  be  correct;  and  no  departure  from  his 
word,  to  which  he  had  substantially  adhered.  He  hoped, 
therefore,  that  gentlemen  would  not  accuse  him  of  a 
breach  of  faith,  and  that  Mr.  Botts  would  withdraw  his 
expression  of  surprise. 


198  TRIAL     OF    AARON    BURR. 

Mr.  Botts. — My  surprise  continues.  I  believe  the  at- 
torney for  the  United  States  is  incapable  of  anything  like 
a  willful  breach  of  promise  ;  but  while  I  am  willing  to 
admit  his  intelligence,  fairness,  and  honor,  I  will  say, 
without  intending,  and  I  hope  without  seeming  to  cast  a 
reproach  upon  a  character  whose  head  and  heart  are  in- 
ferior to  none,  that  a  strong  bias  has  stolen  on  that  gen- 
tleman's mind,  which  ought  to  be  vigilantly  watched. 
He  was  still  surprised  at  the  gentleman's  proceedings, 
because  the  very  principle  which  he  supports  as  to  the 
papers,  would  go  to  prevent  the  introduction  of  witnesses 
before  the  grand  jury.  Papers  he  admits,  are  not  proper 
to  go  before  the  jury  ;  and  therefore,  if  witnesses  are  to 
carry  them,  they  themselves  ought  not  to  go.  If  Mr. 
Hay  were  called  before  the  jury,  he  would  produce  no 
papers,  but  what  had  passed  through  the  court.  But 
Mr.  Hay  is  not  the  only  prosecutor  in  this  business. 
There  is  another  equally  active  and  more  deeply  con- 
cerned. Mr.  Hay  admits  that  this  zealous  prosecutor  may 
produce  his  papers  before  the  jury.  If  he  merely  produce 
papers  to  refresh  his  memory,  any  instruction  which  may 
go  from  the  court,  will  be  perfectly  innocent  in  its  effects  ; 
but  it  is  possible  that  such  an  instruction  may  be  necessary 
to  repress  the  introduction  of  very  improper  papers, 
which  he  might  hope  to  convey  to  the  multitude  abroad, 
through  the  channel  of  the  grand  jury.  We  are  asked 
why  we  suppose  that  improper  papers  will  be  carried  to 
the  grand  jury?  There  was  a  particular  reason  to  re- 
commend this  vigilance.  It  was  understood  that  a  spe- 
cies of  plunder  had  been  permitted  ;  that  the  post-offices 
had  been  robbed  ;  and  that  letters  thus  improperly 
obtained,  ought  not  to  be  laid  before  the  grand  jury, 
without  being  first  examined  by  the  court.  It  was,  in 
fact,  impossible  that  any  papers,  obtained  by  such  means, 
could  be  legal  evidence.  Mr.  Botts  here  read  as  an  author- 
ity, from  the  eighth  volume  of  the  American  Museum, 
Judge  Grimpkie's  charge  to  the  grand  jury,  to  show  that 
written  evidence  ought  not  to  be  heard  by  a  grand  jury  ; 
it  being  a  well-established  principle,  that  a  grand  jury 
ought  not  to  hear  such  evidence,  till  it  is  examined,  and 
declared  to  be  authentic,  by  the  court. 

Chief  Justice. — Neither  affidavits  nor  papers,  contain- 


PAPERS     TO     GRAND    JURY.  199 

ing  distinct  substantive  testimony  against  the  accused, 
ought  to  be  sent  to  the  grand  jury. 

Mr.  Martin. — Mr.  attorney  has  conceded  this  in  sub- 
stance ;  and  we  admit  that  any  witness  may  refer  to 
papers  to  refresh  his  memory. 

Mr.  Hay. — I  am  willing  to  adhere  in  form  and  substance 
to  my  promise.  I  know  not  what  papers  General  Wilkinson 
may  produce.  I  was  with  him  yesterday,  and  saw  him  in 
possession  of  a  great  many.  But  which  of  them  he  may 
choose  to  refer  to,  I  can  not  possibly  say.  If  gentlemen 
wish  to  know  the  object  of  my  visit  to  him,  I  will  tell 
them. 

Mr.  Martin. — It  is  unnecessary. 

Mr.  Hay. —  I  had  said  before  in  this  court,  that  I  would 
not  undertake  to  defend  General  Wilkinson  ;  but  the  re- 
sult of  my  conversation  with  him  yesterday  is,  that  it  is 
my  duty  to  defend  him  ;  because  I  am  well  satisfied' that 
he  is  an  honest  man,  and  a  patriot.  All  my  suspicions, 
imbibed  from  the  mysterious  circumstances  in  the  case, 
have  completely  vanished  ;  and  being  convinced  of  his 
unsullied  integrity.  I  shall  defend  him  with  the  most  per- 
fect sincerity. 

Mr.  Martin. — The  gentleman  has  taken  a  good  way  to 
remove  his  unfavorable  impressions,  if  that  can  be  called 
a  good  one,  which  consists  in  hearing  but  one  side  of  a 
cause.  He  has  heard  Wilkinson's  own  story.  I  wish  he 
would  hear  Colonel  Burr's  story  ;  perhaps  his  impressions 
against  him  might  also  be  removed. 

Mr.  Hay. — I  have  heard  his  story  from  his  counsel ; 
but  they  have  strengthened  my  conviction  against  him. 

Mr.  Wirt  said,  that  he  had  perused  the  authority 
quoted  by  Mr.  Botts,  and  that  he  was  satisfied  that  the 
papers  referred  to  by  Judge  Grimpkie,  were  only  affida- 
vits. [Mr.  Wirt  read  quotations  to  prove  his  position.] 
That  the  distinction  was,  that  where  a  piece  of  written 
testimony  was  distinct  and  substantive,  it  was  not  ad- 
missible as  evidence  before  a  grand  jury;  but  where  it 
was  explanatory  of  viva  voce  evidence,  it  was  proper  and 
admissible.  That  it  was  sometimes  necessary  to  resort 
to  written  papers  as  the  very  best  testimony.  For  ex- 
ample, said  he,  suppose  General  Wilkinson  should  state, 
that  on  such  a  day  he  received  a  letter  from  Burr,  by  the 
hands  of  Bollman  or  Swartwout ;  would  not  Burr's  letters, 


200  TRIAL     OF    AARON    BURR. 

in  such  a  case,  with  Wilkinson's  oath,  that  they  were  the 
handwriting  of  Burr,  be  evidence  even  before  a  petit 
jury,  and  of  course  before  a  grand  jury?  Such  letters 
are  the  best  evidence  of  their  own  contents.  If  he  were 
to  make  a  verbal  statement  of  their  contents,  would  not 
the  jury  have  a  right  to  say  to  him,  "  Produce  the  origi- 
nal, we  demand  it  as  the  best  evidence?"  Suppose 
General  Wilkinson  were  to  produce  the  cyphered  letter, 
would  it  not  be  competent  to  the  jury  to  say,  "  Produce 
it ;  we  shall  receive  it,  and  explanations  of  its  contents  ?  " 
This  shows,  that  the  objection,  as  made  generally  to  all 
papers,  is  fallacious  and  can  not  be  supported  by  law  or 
reason.  There  are  many  different  links  in  the  chain  of 
evidence.  It  is  manifest,  that  written  documents  are 
sometimes  not  only  evidence,  but  the  very  best,  which 
can,  in  the  nature  of  things,  be  adduced. 

Mr.  WickJiam. — The  counsel  said,  that  he  would  send 
up  no  papers.  But  it  is  contended  that  the  witnesses 
may  carry  up  papers  to  the  grand  jury.  It  is  a  distinc- 
tion without  a  difference.  The  object  is  to  prevent  the 
admission  of  improper  evidence  ;  and  it  is  precisely  the 
same  thing  in  substance  to  receive  it  from  a  witness  who 
carries  as  from  the  attorney  who  sends  it.  When  a  petit 
jury  is  empaneled,  the  court  inspect  the  papers  before 
the  jury  are  permitted  to  see  them.  The  gentlemen  have 
laid  down  a  broad  position,  that  any  witness  may  have 
recourse  to  any  papers  to'  strengthen  his  recollection. 
This  is  certainly  not  correct.  I  beg  leave  to  remind  the 
court  of  a  case  (Judge  Chase's  trial),  which  happened  be- 
fore the  highest  tribunal  in  this  country,  the  senate  of 
the  United  States,  where  it  was  decided,  that  a  witness 
(Mr.  -Hay  himself)  was  not  permitted  to  read  memoranda, 
even  to  refresh  his  memory.  Mr.  Wirt  admits  that  an 
affidavit  may  not  be  read,  but  that  a  paper,  not  on  oath, 
may  be  read. 

Mr.  Wirt. — The  gentleman  is  uncandid.  I  wish  he 
would  understand  me,  and  answer  me  candidly.  He 
puts  an  absurdity  into  my  mouth  which  I  disclaim.  I 
wish  the  gentleman  to  state  his  argument  against  my 
argument  as  it  was,  and  not  according  to  his  own  deduc- 
tions. 

.  Mr.  Wickham. — I  agree  that  the  gentleman  did   not 
state  an  absurdity  in  terms  ;  but  an  absurdity  inevitably 


PAPERS     TO     GRAND    JURY.  201 

follows  from  what  he  said.  The  court  alone  ought-  to 
determine  what  papers  are  evidence  and  proper  to  be  at 
all  heard  by  a  grand  jury. 

Mr.  Hay. —  I  beg  leave  to  make  one  observation.  I 
care  not  for  the  decision  in  Chase's  trial ;  nor  do  I  know 
that  it  was  as  now  stated ;  but  if  it  were,  I  assert,  that 
those  who  made  it,  knew  that  it  was  contrary  to%  law. 
In  the  trials  of  Hardy,  Tooke,  and  Thelwal,  a  con- 
trary principle  was  determined.  A  witness,  who  was  a 
spy  of  the  government,  had  no  memory  or  recollection 
of  the  circumstances  he  was  to  prove,  but  from  his  refer- 
ence to  written  memoranda.  Mr.  Wickham  knew  this 
decision  not  to  be  law,  but  he  mentioned  it  merely  be- 
cause I  was  the  witness  in  that  case. 

Mr.  Bctts. — Mr.  Hay's  observation  is  the  longest  I 
ever  heard.  The  senate  did  so  decide,  and  perhaps  unan- 
imously ;  and  it  was  composed  of  the  ablest  lawyers 
from  all  parts  of  the  union. 

Mr.  Hay  contested  the  fact  of  decision  in  that  manner  ; 
but  he  was  irritated,  and  did  not  recollect  precisely  how 
it  was ;  but  he  was  informed  that  it  was  not  decided  un- 
animously, though  it  might  have  been  so  pronounced. 

Messrs.  Martin  and  Wickham  stated,  truit  the  decision 
was  by  eighteen  senators  against  sixteen  (which  was  the 
fact). 

Mr.  Botts.—M.?.  Hay  and  Mr.  Wirt  take  different 
grounds. 

Mr.  Martin  contended,  that  the  court  was  to  decide 
what  evidence  was  to  go  to  the  grand  jury.  He  cited 
Danby's  case,  where  a  witness  gave  a  deposition  under 
the  statute  of  William  and  Mary  ;  he  prevaricated  before 
the  grand  jury,  and  they  sent  for  his  deposition  to  con- 
front him.  The  court  decided  that  they  should  not  have 
it,  because  it  was  improper  for  them  to  see  it. 

Chief  Justice. — There  is  a  difference  between  the  grand 
and  petit  jury.  The  former  are  to  make  inquiry  ;  they 
may  send  for  witnesses;  directions  ought  therefore  to  be 
given  them  in  general  terms.  But  lam  not  satisfied  that 
a  court  ought  to  inspect  the  papers  which  form  a  part  of 
a  witness's  testimony  before  he  is  sent  to  the  grand  jury. 
This  would  render  it  necessary  to  examine  the  witnesses 
in  open  court.  The  chief  justice  here  delivered  the  opin- 
ion of  the  court,  reduced  to  writing,  in  order  to  be  laid 


202  TRIAL     OF    AARON    BURR. 

before  the  grand  jury.  Its  purport  was,  to  instruct  the 
grand  jury  not  to  inspect  any  papers  but  such  as  formed 
a  part  of  the  narrative  of  the  witness,  and  prove  to  be  the 
papers  of  the  person  against  whom  an  indictment  was 
exhibited. 

Mr.  Hay  objected  to  this  form  of  instruction.  Suppose 
a  pajjer  from  a  person  closely  connected  with  the  accused 
were  adduced  ;  as,  for  instance,  Doctor  Bollman.  Such 
a  paper  maybe  important  to  prove  to  the  jury  the  integ- 
rity and  proper  conduct  of  General  Wilkinson.  It  may 
have  had  a  material  influence  on  his  mind,  even  if  not 
genuine. 

Chief  Justice. — Your  argument  is,  that  the  papers  are 
to  be  admitted  to  justify  the  conduct  of  the  witness  ;  but 
they  ought  not  to  bear  upon  the  accused. 

Mr.  Hay. — The  prejudices  in  the  western  and  other 
papers  against  General  Wilkinson's  character,  represent- 
ing him  as  connected  with  Aaron  Burr,  make  it  necessary 
that  his  reputation  should  be  vindicated.  He  comes  be- 
fore the  jury  as  a  suspected  person.  The  language  of 
the  cyphered  letter  seems  to  countenance  the  conjecture. 
It  may  be  necessary  to  exhibit  these  papers  to  support 
the  credit  of  the  witness. 

Chief  Jiistice. — The  opinion  may  therefore  be  amended, 
by  adding  that  such  papers  are  also  admissible  as  tend 
to  justify  the  witness,  but  not  to  bear  upon  the  prisoner. 

Mr.  Wickhain. — General  Wilkinson  is  not  on  his  trial. 
Their  object  is  not  to  vindicate  Wilkinson,  but  to  accuse 
Burr,  who  is  on  his  trial.  Wilkinson's  oath  is  to  be  sup- 
ported by  proving  papers  by  his  oath  ;  so  that  he  is  to 
support  himself.  This  is  not  legal  testimony,  and  ought 
not  to  be  admitted.'  It  is  true,  that  these  papers  do  not 
criminate  Colonel  Burr  directly,  but  they  bear  upon  him 
by  vindicating  Wilkinson  ;  and  it  is  a  sound  rule  of  law, 
that  what  can  not  be  done  directly  shall  not  be  permitted 
to  be  done  indirectly. 

Mr.  Wirt. — The  court  does  not  contravene  that  doc- 
trine. On  Shaftsbury's  trial,  the  grand  jury  wished  to 
examine  witnesses  as  to  the  credibility  of  a  witness. 
Pemberton  rejected  such  evidence,  but  that  opinion  has 
been  exploded.  It  is  the  privilege  and  duty  of  the 
grand  jury  to  judge  of  the  credibility  of  witnesses.  If 


INSTRUCTIONS   TO   GRAND  JURY.       203 

they  have  doubts  of  the  credibility  of  Wilkinson,  they 
ought  to  inquire  into,  and  be  satisfied  upon  the  point. 
They  may  call  upon  him  for  an  explanation  as  to  facts 
and  circumstances,  which  he  can  afford  by  the  production 
of  his  papers. 

Mr.  Hay  proposed  an  amendment  to  the  court's  in- 
structions :  "  that  any  paper  might  be  exhibited  which 
came  from  the  accused,  or  any  other  person  proved  to  be 
an  accomplice  of  the  accused,  or  that  formed  a  part,  or 
was  explanatory  of  the  witness's  narrative." 

Mr.  Martin. — The  prpposed  alteration  suits  the  gentle- 
man's purpose.  There  is  no  paper  under  heaven,  but 
what  might  be  introduced  as  part  of  his  narrative  ;  even 
papers  procured  by  breaking  open  letters  from  the  post- 
office,  or  seized  by  violence  or  robbery,  might  be  so  used 
under  that  general  definition. 

The  Chief  Justice  wished  to  send  some  specific  instruc- 
tions to  the  grand  jury,  to  prevent  the  delay  which  might 
arise  from  their  coming  into  court,  when  they  had  a  par- 
ticular paper  before  them,  on  which  they  would  wish  to 
obtain  the  instruction  of  the  court. 

Mr.  Hay,  contended,  that  the  alteration  he  had  sug- 
gested was  proper  ;  and  quoted  authority  to  show,  that 
when  a  man  was  once  proved  to  be  an  accomplice  or  con- 
nected with  another,  what  was  in  proof  against  the  other, 
was  good  proof  against 'him  [which  see  hereafter]. 

Chief  Justice. — Is  there  any  authority  to  show,  that 
papers  communicated  by  an  accomplice  can  be  used  as 
evidence  ? 

Mr.  Hay. — The  doctrine  is,  that  "where  a  man  is 
proved  to  be  an  accomplice,  his  papers  may  be  used 
against  another."  In  Home  Tooke's  trial,  Erskine  con- 
ceded, that  where  the  prisoner's  connection  with  a  third 
person  was  proved,  the  letters  or  papers  of  that  third 
person  relating  to  the  question  before  the  court,  were 
testimony  against  him.  I  East's  Crown  Law,  page  97. 

Mr.  Wirt  added,  that  there  was  no  difference  between 
the  words  or  writings  of  an  accomplice  as  evidence;  in 
support  of  which  he  referred  to  the  trials  of  Hardy, 
Tooke,  and  Thelwal  [which  see  hereafter],  and  to  6th 
Durnford  &  East's  reports,  p.  527  ;  where  it  was  solemnly 
determined,  on  the  trial  of  William  Stone  for  high  trea- 


204  TRIAL  OF  AARON  BURR 

son.  that  "  a  letter  sent  by  one  of  the  conspirators  in  pur- 
suance of  the  common  design,  with  a  view  of  reaching 
the  enemy,  was  evidence  against  all  persons  engaged  in 
the  same  conspiracy." 

Mr.  Martin. — The  cases  mentioned  by  the  gentleman 
are  cases  of  treason,  for  a  conspiracy  to  kill  the  king;  it 
is  only  in  such  cases,  where  the  crime  consists  in  the 
imagination  of  the  mind,  "  to  compass  the  death  of  the 
king,"  that  such  testimony  is  admissible ;  but  where 
"  levying  war"  is  the  charge,  the  declarations  or  acts  of 
third  persons,  however  connected,  can  not  be  admitted 
as  evidence. 

Mr.  Wickham. — Mr.  Wirt's  authorities  do  not  apply 
to  the  case  of  levying  war.  The  constitution  of  the 
United  States  says,  that  no  person  shall  be  convicted 
except  by  the  evidence  of  two  witnesses,  or  his  own  con- 
fession in  open  court.  Colonel  Burr's  confession  out  of 
court  could  not  be  used  against  him  ;  but  it  seems  by 
the  doctrine  of  gentlemen,  that  the  confession  of  others 
can  be  adduced  against  him. 

Mr.  Hay. — There  are  several  good  lawyers  on  the 
grand  jury.  Mr.  Martin  says  it  would  take  him  a  day  to 
state  what  he  had  to  say  on  this  subject.  It  would  take 
him  his  whole  life  to  prove  the  distinction  he  contends 
for.  Modern  systems  of  evidence  lay  down  the  doctrine 
without  the  distinction.  There  is  much  absurdity  in  the 
distinction.  The  same  rule  ought  to  prevail  in  both 
cases.  Levying  war  against  the  states,  is  a  higher  offense 
than  compassing  the  death  of  the  king.  In  the  latter 
case,  the  declarations  of  third  persons  connected  with  the 
person  accused,  are  admissible  evidence;  &  fortiori  they 
ought  to  be  in  the  former  case.  Mr.  Wickham  says  that 
confession  in  open  court  is  requisite  to  convict.  He  does 
not  understand  the  doctine  correctly.  It  is  this,  sir: 
that  where  a  party  is  convicted  on  his  confession  only,  it 
must  be  in  open  court  ;  but  where  the  confession  itself  is 
proved  as  evidence  of  an  overt  act,  it  must  be  proved  by 
two  witnesses.  This  discussion  is  an  unnecessary  waste 
of  time  ;  it  may  be  thus  prolonged  at  gentlemen's  pleas- 
ure ;  but  it  is  only  proper  to  tell  the  jury  to  ask  advice 
when  they  want  it. 

Mr.  Martin  thanked  the  gentleman  for  enlightening 


INSTRUCTIONS  TO  GRAND  JURY.        305 

his  mind;  but  insisted  that  such  a  construction  as  that 
contended  for  by  him,  was  novel  and  extraordinary. 

Mr.  Botts,  after  some  facetious  remarks  on  the  doctrine 
of  pleas,  rejoinders,  and  rebutters,  &c.,  as  exemplified  in 
the  cause,  proceeded  to  this  effect :  The  declarations  of 
persons  connected  in  a  conspiracy,  are  not  to  be  received 
in  evidence  until  the  conspiracy  itself  is  proved.  Pre- 
viously, the  association  and  the  extent  of  it  must  be 
proved.  The  association  itself  is  not  to  be  proved  by 
such  declarations.  Such  evidence  is  admissible  under 
very  limited  restrictions.  It  is  unreasonable  and  absurd 
for  such  evidence  to  prevail  over  evidence  of  a  superior 
nature;  over  evidence  of  overt  acts.  Neither  conspiracy 
nor  intention  is  war.  The  best  evidence  which  the  na- 
ture of  the  case  is  susceptible  of,  must  be  produced  on 
all  occasions.  You  make  it  out  by  such  an  unreasonably 
dangerous  doctrine  as  this  is,  that  where  a  guilty  inten- 
tion is  once  formed  it  can  not  be  forsaken  with  safety  ; 
for  if  it  be  admissible  evidence,  a  previous  declaration 
may  be  proved  against  a  man  after  he  has  repented  and 
relinquished  his  criminal  intentions. 

Mr.  Hay  informed  the  court,  that  the  grand  jury  had 
sent  for  Doctor  Bollman  ;  that  they  wanted  him  to 
decypher,  if  he  could,  a  cyphered  letter  annexed  to 
Mr.  Willie's  affidavit,  and  which  he  held  in  his  hand. 
That  Mr.  Willie,  the  reputed  secretary  of  Mr.  Burr, 
would  prove  the  identity  of  the  paper,  and  Dr.  Bollman, 
it  was  expected,  would  interpret  it. 

Mr.  Martin  hoped  the  affidavit  would  be  severed  from 
the  letter  to  which  it  was  annexed. 

Mr.  Hay  consented  :  and  Mr.  Willie  who  was  absent, 
was  sent  for. 

The  Chief  Justice  declared,  that  he  did  not  wish  to 
pronounce  an  opinion  on  the  distinction  as  to  the  evi- 
dence in  the  two  kinds  of  treason,  without  seeing  authori- 
ties referred  to.  That  he  was  inclined  to  think  that  such 
a  distinction  as  was  stated  might  exist. 

Here  the  chief  justice  delivered  the  instruction,  as 
amended,  to  the  marshal,  to  be  transmitted  to  the  grand 
jury.  It  was  not  read  in  court. 

Mr.  Hay  wished  the  expression  concerning  "  credi- 
bility "  to  be  struck  out  as  implying  a  doubt. 


206  TRIAL  OF  AARON  B  URR. 

Chief  Justice. — That  idea  was  not  suggested  by  the 
court  ;  such  evidence  is  deemed  inadmissible,  except 
for  the  purpose  of  supporting  the  credibility  of  wit- 
nesses. 

Mr.  Hay  wished  the  latter  clause  to  be  altered,  as  the 
grand  jury  might  think  themselves  bound  to  make  ap- 
plication to  the  court  ;  and  that  showed  the  impropriety 
of  giving  such  instructions  at  all. 

Mr.  Botts. — It  is  indecorous  to  be  consuming  time 
until  the  grand  jury  shall  have  returned  ;  their  own  ex- 
cellent understanding  will  condemn  this  conduct. 

Mr.  Hay. — General  Wilkinson  is  not  under  examina- 
tion. 

Mr.  Wickham. — Gentlemen  think  General  Wilkinson 
the  sole  patron  of  the  cause,  but  there  are  other  wit- 
nesses. 

Mr.  Hay. — None  who  are  expected  to  have  any  papers. 
Mr.  Hay  again  produced  the  cyphered  letter,  annexed 
to  Willie's  affidavit  (Willie  appearing  in  court).  He 
then  proceeded  :  This  is  the  paper  which  I  wish  to  trans- 
mit to  the  grand  jury.  It  is  addressed,  I  understand,  to 
Doctor  Bollman  under  a  fictitious  name,  and  is  all  in  the 
handwriting  of  Mr.  Willie. 

Mr.  Botts  objected  to  its  being  sent  up  to  the  grand 
jury ;  that  he  understood  that  no  paper  was  to  be  laid 
before  them  ;  that  was  not  material  to  the  cause,  whether 
it  could  or  could  not  be  authenticated  ;  and  that  gentle- 
men must  therefore  prove  both  its  materiality  and  its 
authenticity. 

Mr.  Hay. — A  hard  proposition  indeed,  when  it  is 
written  partly  in  cypher  and  partly  in  German  !  I  deem 
it  material,  because  I  understand  it  was  either  dictated 
by  the  accused,  or  first  written  by  him,  and  afterwards 
writen  by  his  secretary,  and  at  his  request ;  it  is  addressed 
to  Henry  Wilbourn  alias  Erick  Bollman.  I  wish  it  to 
be  sent  up  while  Doctor  Bollman  is  before  the  grand 
jury. 

Mr.  Botts. — Our  wishes  are  at  issue. 

Mr.  Wirt. — May  it  not  be  received  under  the  instruc- 
tions already  sent  up? 

Mr.  Burr. — The  paper  is  now  in  possession  of  the 
court ;  it  is  not  to  be  sent  up  to  the  grand  jury,  but  under 


THE  CYPHERED  LETTER.  207 

the  judgment  of  the  court  ;    and   of  course  the  court 
must  be  satisfied  with  the  materiality  of  the  paper. 

Mr.  Hay. — The  accused  is  mistaken  in  point  of  fact. 
The  paper  is  in  my  possession.  Though  I  considered 
myself  bound  to  show  it  to  the  court  according  to  my 
agreement,  I  have  not  yet  delivered  it,  nor  am  I  bound 
to  deliver  it. 

Mr.  Wickham. — Why  was  it  offered  to  the  court,  if  it 
were  not  to  be  put  into  their  possession?  If  it  be  merely 
brought  into  court  that  it  maybe  sent  to  the  grand  jury, 
and  not  considered  as  in  possession,  or  under  the  control 
of  the  court,  any  paper  may  be  conveyed  to  them  in  the 
same  manner.  Mr.  Hay  asserts,  that  it  is  addressed  to 
E.  Bollman.  But  how  has  it  been  obtained  ?  Has  it 
not  been  taken  from  the  post-office?  Has  it  not  the 
post-office  mark  on  it  ?  Has  it  not  been  obtained  by 
felony?  He  wished  to  see  it. 

Mr.  Hay  refused  to  show  it,  and  said  that  he  would 
know  what  to  do  with  papers  hereafter.  [He  was 
understood  to  deny  that  there  was  any  post-office  mark 
on  it  ;  this,  however,  may  be  a  mistake.] 

Mr.  Wickham  demanded  as  a  matter  of  right,  that  the  . 
paper  should  be  delivered  to  him. 

Mr.  Hay. — I  deny  that  the  paper  is  in  possession  of 
the  court,  or  that  it  was  offered  by  me.  If  "it  were,  I 
acted  improperly.  There  is  no  precedent  to  justify  the 
doctrine,  that  I  was  compelled  to  offer  it.  A  paper 
offered  to  the  court  is  either  delivered  or  read.  I  did 
neither.  I  have  a  right  to  send  any  paper  to  the  grand 
jury,  under  the  directions  already  received  by  them  ; 
unless  it  be  explained  by  Willie  and  Bollman,  it  will  be 
no  more  than  an  oak  leaf.  I  hope  I  shall  be  permitted 
to  pursue  the  usual  and  regular  course. 

Mr.  Wickham. — If  the  paper  be  not  before  the  court, 
I  wish  to  know  what  is  the  question  ?  Does  he  offer  it 
to  the  court  ?  [Mr.  Hay.  No.]  How  then  can  any  notice 
be  taken  of  it  ?  How  can  he  send  it  up  to  the  jury.  By 
the  marshal?  He  is  the  officer  of  this  court,  and  bound 
to  pursue  its  orders.  By  Mr.  Willie?  He  is  but  a  wit- 
ness, and  not  bound  to  carry  it.  If  any  paper  go  from 
the  prosecutor  to  the  grand  jury,  it  must  be  with  the 
leave  of  the  court.  If  a  witness  go  up,  it  is  because  he  is 


zoS  TRIAL  OF  AARON  BURR. 

presumed  to  be  a  relevant  witness;  but  if  it  be  a  paper 
how  can  its  relevancy  be  established,  until  its  contents 
and  materiality  are  known  ?  If  an  improper  paper  be 
sent  to  the  grand  jury,  the  indictment  may  be  quashed, 
because  founded  on  illegal  evidence.  Was  not  the  leave 
of  the  court  asked  ?  If  it  were,  that  put  it  in  the  power 
of  the  court.  If  it  were  not  asked,  the  whole  is  improper 
and  illegal.  As  to  what  they  say  they  can  prove  respect- 
ing the  paper,  let  them  first  prove  it.  When  they  do, 
the  paper  may  be  proper. 

Some  ingenious  sparrings  between  Messrs.  Wickham 
and  Wirt  amused  the  audience  a  moment;  when, 

Mr,  Botts  objected  to  the  transmission  of  the  paper. 
It  was  immaterial,  or  it  was  not.  If  it  were  immaterial, 
why  embarrass  the  jury  with  it?  If  it  contained  perti- 
nent matter,  it  was  certainly  wicked  matter,  in  which 
Mr.  Willie  may  be  himself  concerned.  If  he  be  sent  to 
the  grand  jury  with  this  paper,  what  would  he  say  about 
it  ?  Would  the  court  wish  him  to  say  anything  that 
would  criminate  himself?  We  have  a  right,  said  Mr. 
Botts,  to  see  this  paper.  Perhaps  we  shall  find,  that  it 
has  been  filched  from  the  post-office,  contrary  to  the 
eighth  amendment  of  the  constitution,  which  protects 
every  man's  papers  from  unreasonable  searches  and 
seizures.  If  it  has  been  obtained  by  such  illegal  and 
violent  means,  perhaps  the  court  would  arrest  it ;  even 
the  grand  jury  would  not  dirty  their  fingers  with  it. 

Some  desultory  conversation  ensued,  when  Mr.  Willie 
was  called  to  the  court. 

Mr.  Williams,  his  counsel,  hoped  that  no  question 
would  be  put  the  answer  to  which  might  tend  to  crimin- 
ate himself. 

Mr.  Mac  Rea. — Did  you  copy  this  paper? 

Mr.  Williams  (after  consulting  with  his  client). — He 
says,  that  if  any  paper  he  has  written  have  any  effect  on 
any  other  person,  it  will  as  much  affect  himself. 

Mr.  Wirt. — He  has  sworn,  in  his  deposition,  that  he 
did  not  understand  the  cypher  of  this  letter.  How  then 
can  his  merely  copying  it  implicate  him  in  a  crime  when 
he  does  not  know  its  contents  ? 

Mr.  Mac  Rea. — We  will  change  our  question.  Do  you 
understand  the  contents  of  that  paper? 


THE    CYPHERED    LETTER.  209 

Mr.  Williams. — He  objects  to  answering.  He  says, 
that  though  that  question  may  be  an  innocent  one,  yet 
the  counsel  for  the  prosecution  might  go  on  gradually, 
from  one  question  to  Another,  until  he  at  last  obtained 
matter  enough  to  criminate  him. 

Mr.  Mac  Rea. — My  question  is  not,  "  Do  you  under- 
stand this  letter,  and  then  what  are  its  contents  ?  "  If  I 
pursued  this  course,  I  might  then  propound  a  question 
to  which  he  might  object ;  but  unless  I  take  that  course, 
how  can  he  be  criminated  ? 

Mr.  Botts. — If  a  man  know  of  treasonable  matter,  and 
do  not  disclose  it,  he  is  guilty  of  misprision  of  treason. 
Two  circumstances,  therefore,  constitute  this  crime : 
knowledge  of  the  treason,  and  concealment  of  it.  The 
knowledge  of  the  treason,  again,  comprehends  two  ideas  ; 
that  he  must  have  seen  and  understood  the  treasonable 
matter.  To  one  of  these  points,  Mr.  Willie  is  called 
upon  to  depose.  If  this  be  established,  who  knows  but 
the  other  elements  of  the  crime  may  be  gradually  un- 
folded, so  as  to  implicate  him.  The  witness  ought  to 
judge  for  himself. 

Mr.  Mac  Rea. — I  did  not  first  ask,  if  he  copied,  and 
then  understood  it?  but  first,  if  he  understood  it?  Had 
he  answered  this  question  in  the  affirmative,  I  certainly 
should  not  have  pressed  the  other  question  upon  him, 
because,  that  might  have  amounted  to  self-crimination  ; 
but,  if  he  did  not  understand  it,  it  could  not  criminate 
him. 

Mr.  Hay. — I  will  simply  ask  him  whether  he  knows 
this  letter  to  be  written  by  Aaron  Burr,  or  by  some  one 
under  his  authority. 

The  Chief  Justice  said  that  that  was  a  proper  ques- 
tion. 

Mr.  Williams. — He  refuses  to  answer  ;  it  might  tend 
to  criminate  him. 

The  court  were  of  opinion,  that  Mr.  Willie  should 
answer  upon  oath,  whether  or  not  he  thought  that  an- 
swering the  proposed  question,  might  have  a  tendency 
to  criminate  himself. 

Here  a  long  desultory  argument  ensued. 

Chief  Justice. — Has  the  witness  a  right  to  refuse  to 
answer? 

1—14- 


210  TRIAL     OF    AARON    BURR. 

Mr.  Williams. — The  knowledge  of  the  treason,  and 
concealment  of  it  amount  to  a  misprision  of  treason. 

Chief  Justice. — The  better  question  is,  Do  you  under- 
stand it? 

Mr.  Williams. — He  ought  not  to  have  such  a  question 
put  to  him,  because  he  might  be  obliged  to  answer  "  Yes." 
He  ought  not  to  be  compelled  to  answer,  if  it  might 
possibly  criminate  him.  The  witness  is  to  |udge  for  him- 
self though  the  question  may  not  seem  to  affect  him. 
He  referred  to  the  case  of  young  Goosely  before  referred 
to  by  Mr.  Randolph. 

Mr.  Botts. — I  will  give  Mr.  Hay  the  benefit  of  an  au- 
thority, i  Mac  Nally,  257-258,  which  shows,  that  the 
possibility  of  crimination  is  sufficient  to  excuse  the  wit- 
ness from  answering. 

Mr.  Williams. — What  the  witness  says  here,  tending 
to  his  own  crimination,  may  be  used  as  evidence  against 
him  on  a  prosecution.  If  he  answer  at  all,  he  is  deprived 
of  the  privilege  given  by  the  law,  not  to  criminate  one's 
self. 

Chief  Justice. —  If  he  be  to  decide  upon  this,  it  must 
be  on  oath.  He  asked  Willie,  whether  his  answering  the 
question,  whether  he  understood  that  letter,  would  crim- 
inate himself?  He  answered,  it  may  in  a  certain 
case. 

Chief  Justice. — I  wish  to  consider  the  question  until 
to-morrow. 

Judge  Griffin  (to  Mr.  Williams). — The  case  of  Goosely 
was  not  as  you  represented  it.  It  was  the  court  who 
knew  that  the  witness  was  one  of  those  who  robbed  the 
mail. 

Mr.  Hay.— The  doctrine  is  most  pernicious  and  con- 
trary to  the  public  good. 

Mr.  Williams. — The  public  good  does  not  require  the 
conviction  of  Colonel  Burr  so  much  as  to  dispense  with 
the  law. 

It  was  then  agreed  that  the  point  should  be  argued  to- 
morrow, and  Colonel  Burr's  counsel  promised  to  produce 
their  authorities  to  show,  that  Willie  could  not  be  com- 
pelled to  answer  such  questions,  as  might  in  his  own 
ooinion  tend  to  criminate  himself. 


LETTER    FROM     THE    PRESIDENT.       211 

TUESDAY,  June  i6th,  1807. 

As  soon  as  the  court  met,  Mr.  Hay  produced  and  read 
the  following  letter  from  the  President  of  the  United 
States,  in  answer  to  his  letter  on  the  subject  of  the  sub- 
pcena  duccs  fecum,  observing  at  the  same  time,  that  he 
read  it  to  show  the  disposition  of  the  government  not  to 
withhold  any  necessary  papers,  and  that  if  gentlemen 
would  specify  what  orders  they  wanted,  they  would  be 
furnished  without  the  necessity  of  expresses: 

WASHINGTON,  June  isth,  1807. 

"  SIR,  Your  letter  of  the  pth  is  this  moment  received. 
Reserving  the  necessary  right  of  the  President  of  the 
United  States,  to  decide  independently  of  all  other  au- 
thority what  papers  coming  to  him  as  president,  the  pub- 
lic interest  permits  to  be  communicated,  and  to  whom, 
I  assure  you  of  my  readiness,  under  that  restriction,  vol- 
untarily to  furnish  on  all  occasions  whatever  the  purposes 
of  justice  may  require.  But  the  letter  of  General  Wil- 
kinson of  October  2ist,  requested  for  the  defense  of 
Colonel  Burr,  with  every  other  paper  relating  to  the 
charges  against  him,  which  were  in  my  possession  when 
the  attorney-general  went  on  to  Richmond  in  March,  I 
then  delivered  to  him  ;  and  I  have  always  taken  for 
granted  he  left  the  whole  with  you.  If  he  did,  and 
the  bundle  retains  the  Ofder  in  which  I  had  arranged  it, 
you  will  readily  find  the  letter  desired,  under  the  date 
of  its  receipt,  which  was  November  25th  ;  but  lest  the 
attorney-general  should  not  have  left  those  papers  with 
you,  I  this  day  write  to  him  to  forward  this  one  by  post. 
An  uncertainty  whether  he  be  at  Philadelphia,  Wilming- 
ton, or  New-Castle,  may  produce  delay  in  his  receiving 
my  letter,  of  which  it  is  proper  you  should  be  apprised. 
But  as  I  do  not  recollect  the  whole  contents  of  the  letter, 
I  must  beg  leave  to  devolve  on  you  the  exercise  of  that 
discretion  which  it  would  be  my  right  and  duty  to  exer- 
cise, by  withholding  the  communication  of  any  parts  of 
the  letter  which  are  not  directly  material  for  the  purposes 
of  justice.  With  this  application,  which  is  specific,  a 
prompt  compliance  is  practicable  ;  but  when  the  request 
goes  to  copies  of  the  orders  issued,  in  relation  to  Colonel' 


212  TRIAL     OF    AARON    BURR. 

Burr,  to  the  officers  at  Orleans  and  Natchez,  and  by  the 
secretaries  of  the  war  and  navy  departments,  it  seems  to 
cover  a  correspondence  of  many  months,  with  such  a 
variety  of  officers  civil  and  military,  all  over  the  United 
States,  as  would  amount  to  laying  open  the  whole  exec- 
utive books.  I  have  desired  the  secretary  at  war  to 
examine  his  official  communications,  and  on  a  view  of 
these  we  may  be  able  to  judge  what  can  and  ought  to  be 
done,  towards  a  compliance  with  the  request.  If  the 
defendant  allege,  that  there  was  any  particular  order 
which,  as  a  cause,  produced  any  particular  act  on  his  part, 
then  he  must  know  what  this  order  was,  can  specify  it, 
and  a  prompt  answer  can  be  given.  If  the  object  had 
been  specified,  we  might  then  have  had  some  guide  for 
our  conjectures,  as  to  what  part  of  the  executive  records 
might  be  useful  to  him.  But  with  a  perfect  willingness 
to  do  what  is  right,  we  are  without  the  indications  which 
may  enable  us  to  do  it.  If  the  researches  of  the  secre- 
tary at  war  should  produce  anything  proper  for  commu- 
nication and  pertinent  to  any  point  we  can  conceive  in 
the  defense  before  the  court,  it  shall  be  forwarded  to  you. 
I  salute  you  with  esteem  and  respect. 

"TH.  JEFFERSON. 
"  George  Hay,  Esq." 

Some  conversation  ensued,  about  the  specification  of 
the  papers  wanted  for  the  executive. 

Mr.  Hay  stated,  that  in  his  communication  to  the 
president,  to  which  this  letter  was  a  reply,  he  had  men- 
tioned these  papers  in  the  terms  by  which  he  thought 
the  opposite  counsel  would  probably  have  described 
them..  The  president,  however,  did  not  deem  this  de- 
scription sufficient. 

Mr.  Burr's  counsel  then  stated,  that  they  had  sent  an 
express  to  Washington  for  these  papers,  with  a  subpoena 
to  the  president,  and  that  it  would  appear  on  the  return, 
whether  they  could  obtain  them  or  not. 

The  Chief  Justice  recommended  a  certain  order  in  the 
debate,  and  that  only  two  counsel  should  speak  on  each 
side  ;  that  it  would  be  the  best  course  on  every  point  of 
subordinate  importance,  for  the  counsel  on  one  side  to 
open  the  motion  or  argument,  the  opposite  counsel  to 


THE    CYPHERED    LETTER.  213 

reply,  and  the  party  who  opened,  to  close  the  debate, 
unless  some  new  matter  rendered  a  departure  from  this 
rule  proper. 

Both  parties  acquiesced  in  the  propriety  of  this  arrange- 
ment, except  that  Mr.  Martin  said,  that  as  there  was  no 
other  business  before  the  court,  there  was  no  necessity 
of  adhering  to  the  rule,  limiting  the  number  of  counsel 
to  speak. 

Mr.  Hay  hoped  the  rule  would  be  observed  ;  it  would 
relieve  himself  and  some  other  gentlemen.  He  then 
begged  leave  to  call  the  attention  of  the  court  to  a  sub- 
ject mentioned  yesterday ;  that  Docter  Bollman  had 
gone  up  before  the  grand  jury.  What  his  answers  were 
he  knew  not ;  but  he  thought  he  ought  to  be  sent  to  the 
grand  jury  with  Willie,  that  he  might  interpret,  and 
Willie  could  authenticate  the  cyphered  letter;  hence 
arose  the  necessity  of  deciding  the  proposition  that  he 
was  a  pardoned  man. 

Mr.  Botts  hoped,  that  they  would  not  be  interrupted 
in  the  discussion  of  the  question  about  Willie,  which  they 
were  about  to  begin. 

Mr.  Hay  was  willing  to  discuss  either  point  first. 

Here  a  desultory  conversation  ensued,  in  which  Mr. 
Hay  insisted  that  Doctor  Bollman  was  a  pardoned  man, 
and  ought  to  communicate  all  he  knew  to  the  grand 
jury;  which  was  denied  by  the  other  side  ;  when  Doctor 
Bollman,  addressing  himself  to  the  court,  said,  I  have 
answered  every.question  that  was  put  to  me  by  the  grand 
jury. 

Chief  Justice. — Is  there  any  obligation  to  ask  Doctor 
Bollman  if  he  can  decypher  the  letter  ? 

Mr.  Martin. — It  will  be  time  enough  to  discuss  that 
question,  after  the  letter  shall  have  been  before  the  grand 
jury. 

Mr.  Mac  Rae. — I  wish  the  question  now  put.  I  asked 
Willie  whether  he  understood  that  part  of  the  letter  which 
is  in  cypher;  he  could,  not  be  criminal,  if  he  did  not  un- 
derstand it.  I  wish  the  part  which  is  written  in  German 
now  to  be  explained,  to  show  that  there  is  nothing  crim- 
inal in  it.  I  wish  Bollman  to  translate  that  part. 

Chief  Justice. — I  had  rather  proceed  with  the  other 
^point  now ;  how  far  a  witness  may  refuse  to  answer 


2i4  TRIAL     OF    AARON    BURR. 

a    question,    which    he    thinks   would    criminate    him- 
self, 

Mr.  Botts. — I  am  glad  to  be  relieved  from  the  neces- 
sity of  showing  the  versatility  of  gentlemen,  who  fly 
from  one  point  to  another.  I  am  sorry  they  should  at- 
tempt to  drive  us  from  the  discussion.  The  oblique 
insinuation  of  Mr.  Hay  against  Willie,  seeming  to  pre- 
suppose his  guilt  from  his  exercising  the  privilege  of 
not  answering  the  questions  propounded  to  him,  must 
be  answered,  though  it  is  painful  for  me  to  notice  such 
illiberal  attacks.  He  says,  that  Willie  acts  as  if  he  were 
engaged  in  the  conspiracy.  Can  not  Willie  have  another 
excuse  in  seeking  exemption  from  the  examination,  than 
conscious  guilt  ?  The  attorney  for  the  United  States  sees 
every  object,  connected  with  Colonel  Burr,  though  a  jaun- 
diced medium.  With  him  "  trifles  light  as  air,  are  confirma- 
tion strong  as  proofs  of  holy  writ."  How  far  he  might  be 
disposed  to  involve  this  young  man,  upon  a  confession 
of  having  copied  a  letter  in  cypher,  though  ofv  harmless 
import,  I  am  not  prepared  to  say.  But  let  Willie  only 
commit  himself,  so  far  as  to  make  such  confession,  and 
then  be  called  by  his  business  to  that  poor  unfortunate, 
enslaved  country,  Louisiana,  and  it  may  be  the  pretext 
for  oppressing  him  most  cruelly.  He  may  be  seized, 
thrown  into  a  dungeon,  or  into  the  hold  of  a  ship  in  the 
most  rigorous  season,  and  be  heard  of  no  more,  unless  he 
should  have  the  better  fortune  of  being  transported  to 
Washington  for  trial.  An  unfortunate  ignorant  man 
should  be  guarded  from  the  penalty  of  suspicion.  The 
danger  to  be  apprehended  from  this  source  is  not  imagi- 
nary. We  have  not  arrived  at  that  part  of  our  inquiry, 
which  is  awfully  terrible,  and  apt  to  rouse  the  indignation 
of  our  country ;  we  shall  very  soon  give  you  an  awful 
impression  of  the  miseries  of  that  ill-fated  territory,  un- 
der the  total  surrender  of  the  civil  authority  to  military 
guidance.  I  am  driven  prematurely  to  glance  at  one 
outrage  which  may  serve  as  a  sample  of  the  wretched 
state  in  which  that  section  of  our  dependencies  is.  A 
citizen  of  the  United  States,  now  within  the  hearing  of 
my  voice,  in  a  time  of  profound  peace,  was  seized  in 
New-Orleans,  and,  without  being  charged  with  any 
offense,  but  merely  on  suspicion  that  he  could  give  evi- 


THE    CYPHERED    LETTER  215 

dence  against  Colonel  Burr  in  this  court,  to  which  he 
was  willing  to  come,  was  committed  to  prison  without 
bail  or  mainprize  ;  thrown  into  a  stinking  room  with  the 
commonfelonsand  negroes  confined  there,  and  only  taken 
out  at  last  to  be  transported  on  board  of  a  vessel  to 
Richmond  in  custody.  He  was  hurried  like  a  malefactor 
on  board,  without  being  permitted  to  go  to  his  lodgings 
to  get  a  shirt  to  put  on.  He  was  forced  to  yield,  in  the 
humility  of  abject  submission,  to  the  arbitrary  will  of  his 
oppressors.  Are  we  content  to  bear  such  enormities? 
A  man,  only  suspected  of  being  a  witness,  is  subjected  to 
military  slavery.  Shall  we  furnish  a  pretext  against  this 
stranger,  now  called  on  to  implicate  himself,  in  what  are 
called  the  treason  and  misdemeanors  of  Colonel  Burr  ? 
It  has  been  said,  that  my  client  and  his  counsel  have 
taken  much  interest  in  this  privilege.  I  feel  interested 
to  protect  the  innocence  of  that  young  man  from  the 
vengeance  of  illegal  power,  My  client  feels  the  same 
anxiety.  He  is  solicitous  that  he  alone  should  feel  the 
pressure  of  unjust  suspicion  and  persecution. 

But  how  did  this  letter  come  here  ?  Foulness  and 
violence  are  betrayed  in  the  mode  of  its  acquisition.  In 
the  hardest  and  most  arbitary  times  in  England,  papers 
which  were  seized  by  force,  were  brought  forward  as  evi- 
dence against  the  party  from  whom  they  were  taken  ;  but 
succeeding  times  have  abhorred  the  doctrine  ;  and  papers 
found  in  possession  of  a  party  have  been  deemed  the 
weakest  of  all  evidence.  The  foulness  of  that  very  mark 
of  25  cents  deserves  execration. 

Mr.  Hay  said  that  there  was  no  post  mark. 

Mr.  Botts. — The' "25  "  on  the  back,  is  the  only  post- 
mark of  many  of  the  country  post-offices.  Mr.  Hay  did 
not  withhold  it  on  that  account.  How  came  that  mark 
there  ?  Will  the  gentleman  say  how  the  paper  was 
acquired  ?  If  the  post-office  was  robbed,  the  possession 
of  the  paper  was  gained  feloniously.  The  constitution 
has  provided  against  the  seizure  of  papers  ;  and  the  act 
of  congress  has  fixed  the  offense  of  stealing  from  the 
post-offices.  The  means  of  obtaining  the  paper  are 
unconstitutional.  The  end  can  not  be  sanctioned, 'with- 
out maintaining  the  means.  It  is  impossible  that  this 
most  detestable  vice,  of  the  most  infamous  of  European 


2i6  TRIAL     OF    AARON    BURR. 

courts,  can  have  been  patronized  by  the  government. 
By  a  familiarity  of  our  rulers  with  such  hateful  practices 
the  people  would  be  demoralized.  I  claim  from  the 
counsel  for  the  United  States,  as  patriots,  their  aid  to 
sanction  my  propositions,  and  join  me  in  arraigning  an 
act,  which  will  disgrace  all  who  had  any  agency  in  it.  It 
must  be  a  dreadful  state  of  society,  in  which  such  an  of- 
fense should  be  made  the  means  of  assisting  to  prove 
another.  The  principal  of  the  government,  if  here,  would 
join  in  the  denunciation.  If  it  behoove  the  government 
to  suppress  a  paper  thus  unconstitutionally,  clandestinely, 
and  illegally  obtained,  if  they  can  not  use  the  end  with- 
out sanctifying  the  means,  I  wish,  for  the  honor  of  the 
government,  that  the  paper  may  be  suppressed.  I  hope 
that  in  the  dignity  and  generous  spirit  of  Chatham,  they 
will  renounce  it  as  unworthy  of  their  use.  It  will  do 
more  mischief  than  the  treason  could,  were  it  real. 

I  come  now  to  the  abstract  question  of  law.  The 
question  put  to  Willie  is,  do  you  understand  that  the 
original  of  this  letter  was  written  by  Colonel  Burr? 

Mr.  Mac  Rae. — That  is  not  the  question  last  put.  It 
is,  Do  you  understand  that  part  of  the  letter  which  is  ?n 
cypher  ?  , 

Mr.  2?<?/fo.— -Very  well.  The  gentlemen  charge  that 
this  letter  contains  treasonable  matter. 

Mr.  Hay  denied  it. 

Mr.  Botts. — Either  the  letter  contains  treasonable 
matter  or  it  does  not.  If  the  latter,  it  is  irrelevant  and  im- 
proper for  discussion.  If  treasonable  matter  be  contained 
in  it,  the  question  goes  to  criminate  the  witness.  If  he 
answer  "Yes,"  he  is  infamous.  The  rule  is,  that  you 
shall  not  make  the  witness  answer  a  question  which  may 
tend  to  implicate  him  in  moral  or  legal  turpitude.  The 
witness  himself  is  the  judge,  how  far  his  answer  may 
affect  him.  If  he  were  obliged  to  answer,  that  the  court 
may  judge  of  its  tendency,  he  would  be  surrendering  his 
protection  in  the  means  of  securing  it.  If  the  answer 
should  tend  to  make  a  single  link  in  the  chain  of  testi- 
mony necessary  to  involve  him  in  suspicion,  he  has  a 
right  to  decline  it.  The  link  can  not  be  perceived  by  the 
judges  to  belong  to  the  chain,  without  an  exposure  of 
every  other  part  of  it.  Suppose  another  question  were 


THE    CYPHERED    LETTER.  217 

put  to  him,  How  do  you  understand  it?  He  must 
answer  it,  as  he  is  to  tell  the  whole  truth.  Half  of  the 
truth  is  not  to  be  told.  Gilbert's  Law  of  Evidence,  p. 
134.  9  State  Trials,  434.  Another  authority  from  an 
able  arid  impartial  court,  which  has  been  already  referred 
to,  shows  that  although  a  question  may  be  apparently 
innocent,  yet  a  witness  is  not  bound  to  answer  it,  if  he 
think  that  it  tends  to  criminate  him.  The  question  was, 
"  What  profession  are  you  of? "  The  witness  was  a 
Roman  Catholic  priest,  and  the  answer  would  have  sub- 
jected him  to  penalties.  The  court  did  not  know  what 
the  question  would  be,  or  how  it  would  affect  him,  but 
the  witness  did  know.  His  right  to  decline  to  answer 
was  sustained.  What  question  could  on  its  face,  be  more 
harmless  than  that  resisted  by  that  witness  ?  Unless  the 
witness  be  made  the  sole  judge  of  answering,  the  benefit 
of  the  rule  is  lost  to  him. 

If,  as  I  have  already  observed,  the  contents  of  the  let- 
ter be  not  of  a  treasonable  nature,  it  is  irrelevant ;  we 
know  not  the  contents  of  it.  Suppose  the  letter  were 
written  by  an  amorous  young  fellow  to  his  sweetheart, 
would  it  be  a  proper  subject  of  discussion  in  this  case  ? 

I  shall  conclude  with  an  admonition,  or  an  humble 
request,  that  gentlemen  will  give  us  a  better  opportunity 
to  prepare  ourselves  for  the  defense  of  our  rights,  by  pos- 
sessing the  court  with  any  papers  they  intend  to  exhibit 
and  letting  us  see  them.  It  is  a  matter  of  right,  that 
when  a  paper  is  offered  for  any  purpose,  it  should  be 
deposited  with  the  clerk.  Heretofore  we  have  been 
prevented  from  getting  a  sight  of  any  paper  till  the  mo- 
ment of  discussion,  and  then  obtained  it  not  without 
difficulty. 

Mr.  Williams  (counsel  for  Mr.  Willie). — I  lay  down  two 
propositions  which  I  deem  incontrovertible  :  first,  that 
a  witness  is  not  bound  to  criminate  himself:  secondly, 
that  a  witness  is  from  necessity  the  best  judge  of  the 
tendency  of  his  answers. 

To  support  the  first  proposition,  I  refer  the  court  to  I 
Mac  Nally,  256-7-8  ;  Douglas,  590 ;  Goosely's  case  in 
this  court,  where  I  understand  both  points  for  which  I 
contend  were  established.  If  a  witness  admit  that  he 
knows  the  contents,  he  is  guilty  of  misprision  of  treason, 


ai8  TRIAL     OF    AARON    JBURR. 

and  if  it  only  tend  to  produce  the  result,  he  is  not  bound 
to  answer. 

Second,  The  witness  is  to  be  the  judge  how  far  he 
ought  to  answer.  The  reason  of  the  rule  supports  this 
position.  It  is  given  for  his  benefit;  it  is  a  privilege  for 
his  protection.  The  other  rule  of  examining  witnesses  on 
the  "  voir  dire  "  before  they  are  sworn  in  chief,  is  explan- 
atory of  this  rule.  A  witness  is  asked  whether  he  is 
interested  in  the  event  of  the  cause,  before  he  is  admitted 
to  give  evidence  relative  to  the  matter  in  issue.  If  the 
opinion  of  the  person  offered  as  a  witness  be  that  he  is 
interested,  he  is  rejected  as  an  incompetent  witness.  If 
his  opinion  be  to  exclude  him  in  civil  cases,  h  fortiori, 
ought  it  to  exempt  him  from  giving  testimony  in  a  crim- 
inal prosecution  where  his  personal  safety  may  be  in 
danger?  The  witness  only  knows  what  will  be  the  an- 
swer to  the  question.  The  court  can  not  know.  It  may 
discharge  or  criminate  him.  The  witness  must  tell  the 
court  what  his  answer  will  be,  before  they  know  it.  A 
bystander  who  hears  him,  may  be  called  on  to  fix  guilt 
on  him  by  his  declaration.  The  interest  of  the  United 
States  can  not  deprive  him  of  his  right.  His  saying  that 
he  can  not  answer  without  criminating  himself  is  on  oath, 
and  if  he  were  to  perjure  himself  upon  that  point,  he  would 
be  equally  ready  to  perjure  himself  on  every  other  point. 
Whether  public  justice  require  an  answer,  is  not  the 
question ;  but  whether  the  witness  ought  to  be  com- 
pelled to  answer,  when  he  believes  it  would  criminate  or 
endanger  him  ?  To  compel  him  would  be  a  violation 
of  a  great  and  valuable  principle  of  law  and  justice.  No 
case  can  be  produced  wherein  it  has  been  adjudged,  that 
a  witness  is  first  to  say  what  he  does  kno.w,  and  that  the 
court  is  then  to  judge  of  its  tendency,  whether  it  will 
endanger  him  or  not.  A  man  is  not  bound  to  produce 
evidence  against  himself.  I.  Bl.  Rep.  37. 

Mr.  Martin. — The  answer  must  be,  "  I  do  or  I  do  not." 
Mr.  Willie  has  been  considered  a  secretary  of  Colonel 
Burr.  If  he  confess  that  he  knew  the  contents  of  this 
letter,  and  they  should  prove  to  be  treasonable,  his 
continuing  in  the  service  of  Colonel  Burr,  will  make  him 
a  principal  in  the  treason.  He  may  have  written  to 
others  ;  the  post-offices  have  been  put  in  requisition. 


THE     CYPHERED    LETTER.  2>9 

Mr.  Hay. — Insinuations  ought  not  to  be  thrown  out 
against  the  government  without  evidence  to  support  them. 
I  am  willing  to  communicate  all  that  I  know  about  that 
letter.  It  was  transmitted  by  General  Wilkinson,  through 
the  hands  of  Mr.  Minnikin,  who  accompanied  Mr.  Willie 
to  this  place,  and  it  was  attached  to  an  affidavit  obtained 
from  Judge  Toulmin.  I  know  not  whether  Willie  ever 
saw  it  or  not. 

Mr.  Martin. — I  do  not  charge  General  Wilkinson  with 
plundering  this  letter,  but  we  will  hereafter  prove,  that 
they  have  laid  violent  hands  upon  the  post-office  of  New 
Orleans.  They  have  a  paper  and  know  not  how  they 
have  come  by  it.  The  post-office  mark  on  it,  is  a  pre- 
sumptive proof  of  the  violation  of  the  post-office.  Never 
will  I  mince  the  matter.  They  would  not  get  Willie  to 
decypher  this  letter  if  he  could  ;  but  other  witnesses  may 
be  used  to  decypher  it,  and  it  may  then  be  evidence 
against  him,  if  he  acknowledge  now  that  he  understands 
its  contents.  Do  gentlemen  produce  this  letter  to  crim- 
inate Doctor  Bollman  ?  Let  him  decypher  this  letter. 
If  other  letters  are  hereafter  found  in  the  same  cypher, 
his  acknowledgment,  that  he  can  decypher  the  one,  will 
make  him  equally  responsible  for  the  rest.  By  this  con- 
trivance, he  and  Doctor  Bollman  may  be  made  the  in- 
struments of  their  own  crimination  :  the  one  being  used 
against  the  other.  If  a  witness  refuse  to  be  sworn,  he  is 
liable  to  be  committed  for  a  contempt  of  the  court,  Sal- 
ke!d,  270 ;  but  there  is  no  instance  to  be  found  where  the 
court  has  committed  a  witness  for  a  contempt,  for  refusing 
to  answer  a  question,  which  he  supposed  would  crimi- 
nate himself.  Mac  Nally,  637  ;  2  State  Trials,  124. 

Mr.  Botts. — It  is  important  to  know  how  the  letter 
was  obtained.  I  wish  Minnikin  to  be  examined. 

Chief  Justice. — That  is  foreign  to  the  present  discus- 
sion. 

Mr.  Mac  Rae. — The  question  proposed  to  the  witness 
is,"  Do  you  understand  the  contents  of  this  letter  ?  "  But, 
before  I  proceed  to  demand  the  answer,  I  hope  we  may 
congratulate  ourselves  on  the  situation  in  which  we  are 
placed.  The  proceedings  clearly  evince,  that  it  is  not 
our  wish  to  withhold  from  the  accused  any,  the  slightest 
means  of  defending  himself,  and  yet  the  present  is  a 


220  TRIAL     OF    AARON    BURR. 

spectacle  very  rarely  exhibited  in  a  court  of  justic  /he 
counsel  of  the  accused  aiding  the  counsel  of  the  witness 
to  prevent  him  from  being  examined !  I  am  glad,  sir, 
that  counsel  is  employed  for  the  witnesses,  if  thereby  the 
accused  can  be  benefited.  I  am  pleased  that  they  have 
united  in  his  defense.  But  I  have  endeavored,  in  vain,  to 
discover  whether  anything  which  they  have  advanced, 
bears  upon  the  point  before  the  court.  These  gentlemen 
have  widely  wandered  from  it,  and  I  feel  a  deep  regret 
that  they  will  not  confine  themselves  to  the  point  of  law. 
Henceforth,  I  hope  that  they  will  do  so,  and  abandon  this 
species  of  warfare,  and  address  the  judgment  of  the  court, 
instead  of  the  prejudices  of  the  multitude  around. 

Great  part  of  Mr.  Bott's  remarks  are  foreign  to  the 
point.  Instead  of  reasoning  on  the  subject  and  referring 
to  authors  in  support  of  his  assertions,  he  has  made  some 
strange  conjectures,  as  to  what  may  happen  hereafter  to 
Willie,  even  if  the  letter  were  innocent.  That  his 
acknowledging  that  he  had  copied  it,  though  its  con- 
tents be  innocent,  may  expose  him,  at  some  future  day, 
to  persecution  in  some  distant  territory ;  or  perhaps 
doom  him  to  be  thrown  into  confinement  into  the  hold 
of  a  vessel.  Is  not  this  mere  declamation  ?  can  it  be 
called  argument  ?  Does  it  bear  at  all  upon  the  question  ? 
His  remarks  were  certainly  improper  ;  and  perhaps  it 
may  be  improper  to  answer  them.  His  observations 
about  a  distant  territory  are  irrelevant,  as  are  also  all  he 
has  said  about  the  manner  of  obtaining  the  letter. 
What  connection  has  this  subject  with  Louisiana  or  the 
manner  of  obtaining  this  letter  ? 

As  to  the  robbing  of  the  mail,  it  is  all  conjecture. 
Why  has  he  not  specified  the  name  of  the  post-office, 
and  the  name  of  the  officer  ?  A  custom  prevails  in  those 
post-offices  to  affix  upon  a  letter  the  name  of  the  office 
printed  or  written.  This  impression  would  have  been 
sufficient  to  have  led  to  the  discovery  ;  but  there  is  none 
such  on  the  back  of  that  letter.  The  non-observance  of 
the  custom  in  this  case  repels  their  insinuations.  As  to 
the  figures  "  25,"  they  occur  very  frequently  on  the  face 
of  the  letter.  On  the  back  of  it,  they  may  be  a  cyphered 
direction  or  caution  to  the  person  for  whom  it  was  in- 
tended ;  and  this  conjecture  is  as  good  as  theirs. 


THE    CYPHERED    LETTER.  221 

Mr.  Botts  says,  that  this  letter  must  be  fraught  with 
treason,  or  it  is  not ;  and  that  if  it  be  not,  it  is  perfectly 
irrelevant  to  the  present  case.  But  ought  not  the  fact 
to  be  ascertained  ?  Is  it  not  material  to  the  present 
inquiry  that  it  should  ?  But,  says'  Mr.  Botts,  "  if  the 
letter  be  material,  and  Willie  confess  that  he  copied  it, 
he  will  fix  a  crime  on  himself."  That  is  not  granted,  sir. 
Willie  must  also  understand  it.  Even  if  it  be  treason- 
ble,  it  was  no  offense  to  copy  it,  unless  he  understod  its 
contents.  He  can  neither  be  accused  nor  punished  for  it. 
All  that  could  be  said  against  him  would  be,  that  he  had 
ignorantly  done  an  act,  injurious  to  the  public,  with  an 
intention  to  benefit  an  individual. 

The  authority  in  Gilbert,  134,  cited  by  Mr.  Botts, 
would  apply  if  the  question  were  afaout  the  credibility 
of  a  witness.  But  that  is  not  the  case,  and  the  authority 
s  inapplicable. 

They  have  also  quoted  a  case  from  9  State  Trials,  where 
a  popish  priest  was  permitted  to  elude  a  question  with- 
out answering  it.  According  to  the  English  laws,  the 
witness,  if  he  confessed  that  he  was  a  Roman  Catholic, 
was  liable  to  certain  disabilities.  There  it  was  known  to 
the  court,  as  well  as  to  the  witness,  that  there  was  such 
a  law,  and  that  by  such  a  confession  he  would  subject 
himself  to  its  operation.  The  court,  therefore,  did  not 
press  him  for  an  answer.  But  here  it  is  contended  that 
the  witness  is  alone  the  judge  of  the  law  and  the  fact 
whether  he  ought  to  answer  or  not :  for  both  both  the 
law  and  the  fact  are  included  in  the  privilege,  which  they 
claim  for  the  witness.  In  the  cases  cited  by  them,  the 
court  did  understand  the  subject,  and  saw  the  danger  of 
the  witness;  but  here  the  subject  is  not  understood  by 
the  court ;  and  the  right  of  judging,  whether  the  witness 
be  in  danger  or  not,  is  denied  them.  Mr.  Martin  cited 
authority  in  support  of  this  principle  ;  that  courts  had 
punished  a  witness  for  a  contempt  in  not  taking  the  oath, 
but  never  where  he  refused  to  answer  in  cases  in  which 
he  might  criminate  himself.  A  court  has  always  a  right 
to  understand  the  ground  on  which  a  witness  refuses  to 
answer,  and  every  man  is  liable  to  give  testimony,  unless 
he  come  within  certain  exceptions ;  and  in  those  cases, 
he  must  show  some  law  or  authority  to  justify  his  refusal 


222  TRIAL    OF    AARON   BURR. 

to  answer.  Does  the  court  possess  the  power  of  com- 
pelling a  man  to  make  oath  that  he  will  give  evidence, 
and  yet  not  possess  that  of  making  him  comply  with  it? 
Surely  this  would  be  preposterous. 

In  the  case  of  the'votr  dire,  it  is  not  sufficient  to  ask  a 
witness,  if  he  be  not  interested.  If  he  say  that  he  is  not 
interested  in  the  event  of  the  cause,  inquiries  may  be 
made  into  the  ground  of  his  opinion  ;  and  if  it  can  be 
proved  by  other  witnesses  that  he  is  interested,  he  is 
excluded.  It,  is  never  referred  to  the  witness  only. 
Every  day's  practice  proves  this  to  be  the  law. 

The  court  has  a  right  to  understand  the  grounds  oi 
the  privilege  claimed  by  the  witness.  Suppose  an  at- 
torney were  called  on  to  give  testimony,  and  he  should 
say  that  his  knowledge  of  facts  had  been  derived  from 
confidential  communications  from  his  client :  he  would 
not  be  the  only  judge  in  that  case.  The  court  would 
inquire  whether  they  were  made  to  him  in  his  profess- 
ional or  private  character?  The  supreme  court  have  so 
decided.  Cranche's  Reports,  137,  and  i  Mac  Nally,  255, 
substantially  support  this  doctrine.  The  priest,  in  the 
case  referred  to,  was  compelled  to  state  the  ground  of 
his  refusing  to  answer. 

The  witness  objects,  that  by  answering  he  may  crimi- 
nate himself;  but  the  court  is  to  judge  of  the  tendency 
of  the  question.  It  must  appear  that  he  may  criminate 
himself.  The  question  is,  Do  you  understand  that  part  of 
the  letter  that  is  in  cypher  ?  Whether  he  answer  "  yes,"  or 
"  no,"  he  can  not  criminate  himself.  If  he  say  "Yes,"  it 
can  not  criminate  him  unless  it  be  coupled  with  other 
questions,  and  his  answers  to  them  ;  and  unless  also  he 
wrote  it.  He  may  know  the  key  to  the  cypher  very 
innocently.  It  may  have  been  imparted  to  him  for  the 
purpose  of  carrying  on  an  innocent  correspondence. 
He  may  know  the  cypher  without  having  any  connec- 
tion with  its  contents ;  or  he  may  have  acquired  a  knowl- 
edge of  the  cypher  long  after  the  letter  was  written.  I 
wish  gentlemen  to  show  how  he  can  criminate  himself, 
by  answering  this  question.  They  have  not  shown  that 
it  will,  or  that  it  may  criminate  him  ;  and  if  the  answer 
will  not  criminate  him,  the  United  States  are  entitled  to 
his  evidence.  If  he  answer  "  No  ;"  if  he  be  unacquainted 


THE    CYPHERED    LETTER.  223 

with  the  cypher  he  is  innocent,  and  can  not  be  crimi- 
nated. 

As  to  the  law,  there  is  no  difference  in  opinion.  We 
all  agree  in  opinion,  that  a  witness  can  not  be  made  to 
criminate  himself.  The  only  dispute  is  about  the  effect 
of  the  answer.  I  hope,  therefore,  that  the  court  will 
compel  him  to  answer  the  question,  unless  it  be  shown 
that  he  will  or  may  criminate  himself.  I  am  sorry  that 
so  much  time  has  been  consumed  upon  so  plain  a  ques- 
tion. 

Mr.  Hay. — I  did  not  wish  to  say  anything  on  this 
frivolous  question,  when  a  subject  so  important  ought  to 
occupy  our  time.  The  effect  of  the  paper  is  dreaded,  for 
.gentlemen  discover  unexampled  solicitude  to  keep  it  out 
of  view.  I  know  not  its  contents.  They  have  repeat- 
edly asserted  that  Mr.  Burr  was  persecuted  and  innocent. 
If  this  be  true,  why  do  they  shrink  from  the  evidence.  In- 
tegrity walks  forth  with  a  bold,  and  erect  front  before  the 
world.  A  man  who  knows  his  own  innocence,  despises 
the  powerless  efforts  of  his  enemies.  They  have  con- 
sumed a  great  deal  of  time  unnecessarily;  and  yet  charge 
us  with  wasting  it.  I  have  taken  up  about  the  fortieth 
part  of  the  time  occupied  by  the  gentleman  who  spoke  first. 

I  come  now  to  the  question.  There  are,  in  fact,  two 
questions  which  we  wish  to  put  to  the  witness.  1st, 
Do  you  understand  the  cypher  of  that  paper?  2d,  Did 
the  paper  come  from  Mr.  Burr?  was  it  written  by  him, 
or  by  his  directions  ?  The  last  question  ought  to  have 
been  first  stated.  The  witness  does  not  say  why  the 
answer  to  the  question  will  have  a  tendency  to  criminate 
him.  The  court  can  not  judge,  whether  his  motive  may 
not  be  an  unwillingness  to  give  testimony  against  a  per- 
son to  whom  he  is  attached.  He  ought  to  answer  ;  the 
court  can  not  decide  without  information  from  him, 
showing  in  what  manner  it  may  tend  to  his  crimination. 
The  meaning  of  the  argument  offered  in  defense  of  his 
silence,  is,  that  he  is  connected  with  Mr.  Burr,  and  as 
deep  in  the  treason  as  he  is.  Will  his  answering  the 
question,  "  Whether  he  understand  that  cypher?  "  sub- 
ject him  to  a  prosecution?  It  certainly  will  not.  His 
knowledge  of  the  cypher  is  not  inconsistent  with  perfect 
innocence.  They  say  that  the  question  ought  to  be, 


224  TRIAL     OF    AARON    BURR. 

Has  it  a  tendency  to  criminate  him?  The  wit  of  man  can 
not  tell  whether  any  tendency  to  criminate  him  can  result 
from  answering  this  question.  The  great  rule  of  law,  of 
which  the  cases  cited  are  illustrations,  is  this:  that  a  wit- 
ness is  not  to  give  evidence  to  accuse  himself  of  a  crime 
(l  Mac  Nally,  256;  Hawk,  609).  I  venture  to  affirm  that 
the  gentlemen  can  not  produce  a  case,  that  goes  as  far 
as  to  say  that  a  witness  is  not  to  answer  what  may  tend 
to  criminate  himself.  But  this  answer  will  not  even  tend 
to  criminate  him,  nor  will  it  tend  to  calumniate  him. 
The  doctrine  of  Mr.  Williams,  about  a  pardoned  man, 
does  not  apply.  I  contend  that  a  man  is  bound  to  an- 
swer every  question  relating  to  the  point  in  issue,  unless 
it  subject  him  to  a  prosecution.  But  as  to  collateral 
points,  he  is  not  bound  merely  to  degrade  or  calumniate 
himself.  Every  case  mentioned  has  been  decided  on 
these  principles.  I  Mac  Nally,  258:  The  authorities 
there  show,  that  a  witness  must  make  answer,  unless  it 
directly  criminate  him  ;  or,  what  is  the  same  thing,  sub- 
ject him  to  punishment.  The  objection  now  made  by 
the  gentlemen  was  there  expressly  overruled.  In  the 
case  of  the  King  v.  Edwards,  the  question  put  was  ob- 
jected to,  as  tending  to  criminate  himself.  But  the  ob- 
jection was  overruled  by  the  court ;  saying,  "there  was 
no  impropriety  in  the  question  ;  as  the  answer  would  not 
subject  him  to  any  punishment."  This,  therefore,  is  a 
decisive  authority  in  our  favor,  being  precisely  the  same 
point.  The  doctrine  cited  from  the  State  Trials,  was 
overruled  by  the  cases  in  I  Mac  Nally,  259.  I  will  not 
appeal  to  the  candor,  but  to  the  ingenuity  of  gentlemen, 
to  show  how  the  answer  to  this  question  can  criminate 
the  witness.  The  question  is,  "  Do  you  know  that  cy- 
pher?" relating  to  the  present  time.  If  the  letter  con- 
tained guilt,  and  he  knew  it  from  the  beginning,  it  might 

o  *  00*0 

implicate  him  ;  but  we  do  not  ask  how  long  he  has  known 
it. 

The  other  question  which  we  propose,  is  not  whether 
he  copied  or  wrote  the  letter,  but  whether  it  were  written 
by  Burr  or  by  his  directions.  This  he  can  say,  without 
saying  who  wrote  it,  if  Mr.  Burr  did  not. 

But  it  is  said,  that  "  the  court  is  not  to  judge  "  whether 
he  ought  to  answer,  or  whether  it  tend  to  criminate  him 


THE  CYPHERED   LETTER.  225 

or  not.  This  is  one  of  the  wonderful  positions  in  the 
wonderful  cases  resorted  to  by  gentlemen.  Yesterday 
they  said  that  it  was  a  clear  case,  and  that  they  only 
wanted  time  to  look  for  authorities.  And  what  have 
they  found  ?  Nothing  to  support  their  position,  though 
I  have  produced  an  authority,  directly  in  point,  against 
it.  I  ask  if  this  doctrine  be  not  a  prostration  of  the  rules 
uniformly  prevailing  in  all  courts  of  justice?  The  court 
ought  to  judge  every  point  of  law  arising  collaterally  or 
incidentally  in  a  cause.  The  witness,  from  caprice  or 
corrupt  motives,  may  refuse  to  answer  the  question.  Is 
it  not  strange  that  the  court  should  politely  say  to  a 
witness,  "  You  have  been  sworn  to  tell  the  whole  truth, 
but  you  may  be  silent  if  you  think  proper,"  without 
assigning  any  reason  for  it  ?  I  expected  something  like 
authorities  to  prove  that  the  witness  had  a  discretion  to 
answer  or  not.  Douglas,  593,  stating  that  a  man  was  not 
bound  to  answer  whether  he  were  a  Roman  Catholic  or 
not,  might  as  well  have  been  introduced  to  prove  any- 
thing else.  The  answer  there,  if  in  the  affirmative,  would 
subject  immediately  to  disabilities;  but  here  it  can  not. 

As  to  Goosely's  case,  I  know  nothing  of  it.  Judge 
Griffin  and  Mr.  Williams  differ  in  their  statements  con- 
cerning it;  but  if  that  case  be  contrary  to  the  uniform 
current  of  authorities,  it  is  not  binding.  In  Cooper's 
case  the  decision  is  contrary  to  law,  and  has  been  disre- 
garded since. 

The  Chief  Justice. — The  decision  in  Cooper's  case  was 
only  that  the  accused  had  not  a  right  to  obtain  papers 
from  the  public  offices  for  certain  purposes. 

Mr.  Hay. — That  decision,  that  papers  shall  not  be 
obtained  from  the  public  offices,  does  not  apply  to  the 
present  case. 

[Here  Goosely's  case  was  produced,  and  part  of  it  read 
from  the  manuscript  report  ot  Mr.  Daniel  Call  (a  gentle- 
man well  known  as  an  able  lawyer  and  correct  reporter), 
and  which  case,  in  substance,  is  as  follows  :  Goosely  was 
indicted  for  felony,  under  the  i6th  and  i/th  sections  of 
the  act  of  Congress  establishing  the  post-offices  and  post- 
roads  within  the  United  States,  for  robbing  the  mail  of 
some  bank  notes.  On  his  trial,  "  the  attorney  for  the 
United  States  called Reynolds,  an  accomplice 


226  TRIAL     OF    AARON    BURR. 

with  the  person,  against  whom  an  indictment  for  the 
offence  had  been  preferred,  but  which  had  been  found 
'  not  a  true  bill'  by  the  jury.  Randolph  and  Wickham, 
counsel  for  the  prisoner,  objected  to  his  testimony  on 
the  principle  that  the  witness  was  not  bound  to  give  any 
evidence  which  might  implicate  himself.  The  attorney 
admitted  the  general  principle,  but  denied  its  application, 
and  insisted  that  he  might  give  evidence.  The  court  de- 
termined 'that  he  was  a  competent  witness;  '  but  Judge 
Iredell  observed  (and  Judge  Griffin  concurred),  that  'he 
could  not  be  compelled  to  answer  a  question  leading  to 
an  implication  of  himself ;  and  that  it  was  very  probable 
that  the  jury  would  pay  but  little  attention  to  a  fact 
which  they  were  satisfied  was  but  partially  related.'  He 
was  asked  whether  he  knew  of  any  bank  notes  being 
taken  out  of  the  mail  by  the  prisoner.  Pie  answered, 
none,  but  what  he  was  jointly  concerned  in.  The  court 
said  that  he  was  not  bound  to  tell  anything  that  might 
'  tend  to  criminate  himself.'  The  jury  returned  a  verdict 
for  the  prisoner  of  not  guilty,  and  he  was  discharged."] 

Gentlemen  prove  a  thing  which  is  not  denied,  and  say 
that  they  have  gained  a  victory.  4  State  Trials,  414, 
seems  to  countenance  the  doctrine  on  the  other  side.  In 
i  Mac  Nally,  258,  the  court  perhaps  knew  the  situation 
of  the  man,  and  that  it  would  criminate  him  ;  but  it  is 
here  decided  that  where  the  court  knows  not  the  situa- 
tion of  the  witness,  or  whether  his  answer  would  subject 
him  to  punishment,  they  will  leave  it  to  the  witness. 

Mr.  Williams  says  that  the  answer  itself  must  be  given 
to  enable  the  court  to  judge  whether  it  will  criminate 
him.  But  certainly  the  court  may  inquire  into  the  cir- 
cumstances, to  discover  why  he  will  be  endangered.  A 
man  who  says  that  he  is  interested,  even  if  he  be  not,  is 
disqualified ;  because  he  is  under  a  bias  if  he  think  so, 
whether  the  fact  be  that  he  is  or  is  not  interested.  In 
that  case,  it  is  an  objection  to  the  testimony  of  a  witness 
who  is  offered.  This,  on  the  contrary,  is  a  question  of 
exemption  of  privilege,  claimed  by  the  witness  to  excuse 
him  from  giving  testimony ;  a  duty  incumbent  on  all, 
except  interested  persons.  In  the  case  of  Marbury  v. 
Madison,  it  was  decided  that  "a  witness  may  state  his 
objections,"  and  the  witness  did  state  his  objections, 


THE    CYPHERED^   LETTER.  227 

and  they  were  sustained ;  but  here  the  witness  refuses  to 
state  his  objections.  He  is  silent,  and  refuses  to  explain. 

Mr.  Botts  says  that  the  letter  is  irrelevant.  To  this  I 
answer,  that  this  can  only  be  ascertained  by  discovering 
its  meaning;.  The  gentleman  declaim  about  plundering 
the  post-offices.  We  deny  it ;  let  them  prove  it.  I  could 
talk  of  a  detestable  plot  to  plunder  a  city  and  rob  a  bank, 
as  subservient  to  the  execution  of  projects  of  unprinci- 
pled ambition;  but  I  will  not  do  it  till  a  future  day. 
They  scatter  ambiguous  words  with  a  view  to  excite 
public  suspicion  and  discontent.  They  insinuate,  that 
this  depredation  has  not  only  been  committed,  but 
that  it  was  countenanced  by  General  Wilkinson  and 
the  President  of  the  United  States.  But  it  ought  to  be 
proved  before  they  allege  it  in  a  court  of  justice.  J3ut 
suppose  the  letter  had  been  in  the  post  office,  and  it 
had  been  voluntarily  delivered  by  the  post-master,  on 
discovering  that  it  contained  a  treasonable  plot,  to  the 
commander-in-chief,  in  order  to  prevent  the  treason ; 
would  this  have  been  criminal  or  improper?  It  has 
always  been  the  practice  to  intercept  letters  to  prevent 
treason.  It  is  founded  on  necessity,  and  dictated  by 
the  laws  of  self-preservation.  As  to  Mr.  Martin's 
position,  that  a  witness  may  be  committed  for  refusing 
to  be  sworn,  but  not  tor  refusing  to  answer — 

Chief  Justice. — Mr.  Martin's  position  was,  that  a 
witness  might  be  committed  for  refusing  to  be  sworn; 
but  not  for  refusing  to  answer,  when  he  thinks  the 
answer  would  criminate  him. 

Mr.  Hay. — If  that  be  the  law,  it  does  not  justify  the 
refusal  of  the  witness  in  this  case  to  answer.  The 
cases  are  not  alike.  No  authority  would  be  found, 
after  their  most  industrious  researches;  because  no 
case  could  be  found  similar  to  this  case.  I  trust,  there- 
fore, that  the  witness  will  not  be  permitted  to  judge  for 
himself;  but  that  he  must  answer  our  question,  as  it 
can  not  be  shown  that  it  will  endanger  him. 

Mr.  Wirt. — Very  little  is  left  for  me  to  say,  after  the 
able  arguments  of  my  respectable  associates  ;  but,  if  I 
can  not  add  to  their  arguments,  I  will  try  not  to  ob- 
scure the  subject.  We  ought,  indeed,  to  render  thanks 
to  the  gentlemen  for  keeping  us  from  gaping,  by  the 


223  TRIAL    OF  AARON  BURR. 

multiplicity  of  their  motions  and  interludes.  They 
have  made  so  many  points  as  to  form  a  chevaux  defrize 
in  the  stream  of  the  prosecution,  and  to  place  an  insur- 
mountable bar  between  the  prisoner  and  justice.  This 
is  the  true  mode  to  get  the  prisoner  off  at  all  events  ; 
but  not  the  way  to  get  him  off  with  honor.  If  they 
wish  to  remote  the  blot  in  his  escutcheon,  they  must 
submit  to  a  candid  examination  of  all  the  testimony  ; 
they  must  cease  their  constant  efforts  to  stifle  the  evi- 
dence that  operates  against  them. 

The  gentlemen  have  assumed  what  is  not  proved, 
that  Willie  is  an  accomplice.  But  all  their  arguments 
and  inferences  founded  on  this  assumption  must  be  un- 
availing. We  do  not,  and  will  not  admit,  that  he  is  an 
accomplice  till  it  be  proved  :  but,  if  an  accomplice  may 
be  a  witness,  d  fortiori  a  person  who  is  not  an  accom- 
plice may  certainly  be  a  witness ;  and  that  an  accom- 
plice may  be  a  witness,  can  be  clearly  shown  by  many 
respectable  authorities.  I  refer  the  court  to  i  MacNally, 
192,  193,  194;  2  Hawk,  608;  Gilb.  122.  Why  should 
the  law  make  an  accomplice  a  witness,  unless  the  court 
had  a  power  to  interrrogate  him.  This  man  cannot 
shelter  himself  from  giving  testimony,  but  by  showing 
some  legal  privilege  or  exemption,  i  MacNally,  247, 
253,  254,  255.  All  these  authorities  are  strong  and  ap- 
plicable; but  the  last  is  directly  in  point.  It  is  there 
stated  as  clear  law,  that  the  "claim  of  exemption  from 
giving  evidence  is  scrutinized  with  a  jealous  eye;  and  the 
person  relying  upon  it,  must  establish  his  right,  by  show- 
ing a  positive  law  or  express  authority."  There  it  was 
determined,  that  it  was  no  cause  of  exemption  that  the 
knowledge  "the  witness  had  of  the  matter,  arose  from 
a  confidential  communication  made  to  him  in  the  exercise 
of  his  clerical  functions :  and  which  the  principles  of  his 
religion  forbade  him  to  disclose;  "  and  that  every  man  is 
bound  to  discover  what  he  knows  of  the  matter  in  "  issue 
unless  he  be  specially  exempted  and  protected  by  law.1' 
They  say  that  the  witness  is  exempted  by  a  rule  of  law. 
I  will  examine  what  that  rule  is.  It  is  laid  down  in  Hawk- 
ins, 609,  Book  2,  chap.  46,  §  20,  that  '•  it  is  a  general  rule 
that  a  witness  shall  not  be  asked  any  question,  the  an- 
swering of  which  might  oblige  him  to  accuse  himself  of 


THE  CYPHERED  LETTER.  229 

a  crime."  This,  sir,  is  a  narrow  rule,  which  they  have 
blown  up  into  an  immense  magnitude.  If  the  answer 
of  the  witness  include  guilt,  he  is  not  bound  to  speak. 
Unless  it  oblige  him  to  accuse  himself  of  a  crime,  ha 
must  make  answer  to  any  question  propounded  to  him  ; 
but  what  are  the  limits  to  the  rule  they  contend  tor. 
What  are  the  limits  of  ua  tendency  to  criminate?" 
Any  question  may  indirectly  and  remotely  have  a  tend- 
ency to  criminate  or  to  produce  any  other  effect.  The 
rule  they  insist  on,  is  almighty  and  boundless:  any 
witness  may  thereby  screen  himself  from  giving  evi- 
dence against  a  person  to  whom  he  is  attached.  Like  the 
Cretan  labyrinth,  it  can  never  be  traced  nor  pursued, 
and  if  the  witness  once  get  into  it,  you  never  can  ex- 
tricate him  from  it.  Does  the  witness  know  that  the 
answer  he  is  to  make  to  this  question  has  a  tendency  to 
subject  him  to  legal  persecution  or  punishment?  I  con- 
tend that  the  precise  question  put,  must  contain  the 
criminating  matter;  and  that  therefore  a  question,  to 
which  an  answer  must  criminate,  must  be  put  before  the 
court  can  arrest  inquiry.  If  we  put  questions  to  which 
answers  may  be  made  without  such  an  effect,  the  witness 
must  answer  them.  This  question  requires  no  such  an- 
swer. If  we  afterwards  put  a  question  to  which  the 
answer  must  subject  to  a  prosecution,  it  will  be  then  time 
enough  to  arrest  us.  If  the  letter  be  treasonable,  and  he 
were  to  answer  "Yes"  to  the  question,whether  he  knows 
the  cypher;  and  if  he  knew  it  to  be  treasonable  from  the 
first,  he  might  be  endangered  ;  but  many  links  are  want- 
ing to  make  a  chain  to  bind  Willie.  Accomplices  may  be 
witnesses,but  they  say  they  must  not  be  compelled  to  give 
evidence  that  may  tend  to  criminate  them.  Tendency 
unlimited,  brings  the  rule  to  nothing.  But  I  will  meet 
tnem  plainly.  If  we  ask  the  witness  if  he  be  guilty  of 
treason,  and  he  answer  uYes,"  his  confession  cannot  be 
used  against  him.  The  "  confession  in  open  court,"  men- 
tioned in  the  Constitution  of  the  United  States,  applies 
to  confessions  on  arraignment,  and  to  no  other.  It  will 
puzzle  the  learning  of  Mr.  Martin  to  show  a  case  of  a  wit-  >. 
ness  being  exempted  from  answering  questions  apply- 
ing to  the  point  in  issue.  The  exemption  in  the  cases 
they  rely  on,  extends  only  to  collateral  points.  Cases  are 


230  TRIAL   OF  AARON  BURR. 

frequent  in  the  books,  where  witnesses  are  examined  to 
points  to  defame  or  convict  themselves,  where  they  are 
questioned  as  to  the  issue.  The  cases  in  Mac  Nally,  are 
always  of  questions  put  not  touching  the  issue.  In  the 
trial  of  Reading,  2  State  Trials,  p.  802,  806,  822,  the 
question  was  to  a  collateral  point.  It  was  so  in  the  Earl 
of  Shaftesbury's  case,  in  3  State  Trials,  418 ;  and  so  it  is 
in  all  the  cases.  They  are  not  permitted  to  wander  out 
of  the  track  to  defame  witnesses.  A  confession  made  by  a 
witness  on  oath  does  not  bind  him  because  it  is  not  vol- 
untary. 2  State  Trials  123';  Christopher  Love's  case. 
Jackson's  examination  in  that  case,  exactly  resembles 
this  of  Willie.  It  proves,  too,  that  he  was  committed 
not  merely  for  refusing  to  swear,  but  also  for  refusing  to 
tell  the  wnole  truth.  If  Mr.  Martin  say  it  was  merely 
for  refusing  to  take  the  form  of  the  oath,  what  benefit 
would  his  taking  the  oath  produce,  if  he  were  not  to 
answer  the  questions  put  to  him  ?  That  was  only  the 
case  of  an  accomplice  about  to  be  interrogated  as  to  the 
point  in  issue,  and  a  difficulty  was  raised.  This  is  a  very 
simple  point;  and  the  only  way  to  authenticate  this  let- 
ter is  by  the  evidence  of  this  witness.  The  prisoner  is  a 
great  lawyer.  Is  it  supposed  he  did  not  guard  his  foot- 
steps? Would  he  call  two  witnesses  to  the  letter?  We 
want  it  not  to  go  to  the  grand  jury,  until  we  prove  it 
his  offspring,  by  this  witness,  who  would  not  tell  one 
truth  against  him,  if  he  could  help  it.  They  put  their 
hands  on  his  mouth  to  prevent  him  from  telling  anything 
he  knows;  and  he  is  so  eager  to  secure  the  safety  of  Mr. 
Burr,  that  he  employs  counsel  himself,  to  prevent  him 
from  being  obliged  to  reveal  what  he  knows  against  him. 
1  trust,  therefore,  that  this  witness  will  be  compelled  to 
answer  our  questions. 

Mr.  Martin  proposed  to  go  on  with  the  argument  to- 
morrow. 

Mr.  Ray  wished  it  to  go  on  this  evening ;  that  the 
public  convenience  required  that  the  evidence  should  be 
introduced  at  this  time  to  the  grand  jury. 

Mr.  Martin.— I  will  endeavor  to  answer  first,  the  gen- 
tleman who  spoke  last.  He  says  that  we  have  made 
more  points  than  ever  were  made  before;  to  which  I 
answer,  that  no  prosecution  was  ever  conducted  like  this 


THE  CYPHERED  LETTER.  231 

He  says  that  we  ought  to  court  the  fullest  investigation. 
What !  without  the  means  of  repelling  their  unjust  at- 
tacks, and  the  misrepresentations  of  their  witnesses. 
The  privilege  is  not  Mr.  Burr's,  but  that  of  the  witness. 
As  to  accomplices  being  witnesses,  they  may  be,  and 
sometimes  are  so  voluntarily,  but  never  otherwise.  As 
to  the  witness  employ  ing  counsel,  he  is  right  to  do  it  to 
protect  himself.  His  own  character  and  life  may  be 
endangered,  and  the  counsel  for  the  defendant  are  not 
wrong  in  assisting  to  protect  the  witness.  A  great  law- 
yer in  the  case  of  Callender  did  the  same  ;  and  there  is 
no  impropriety  in  either  case  ;  both  are  proper. 

Mr.  Wirt  said  that  he  would  not  follow  the  same  track 
which  we  had  travelled.  He  has  indeed  followed  differ- 
ent principles.  In  all  the  cases  which  he  has  cited  the 
accomplice  came  forward  voluntarily  ;  but  he  could  not 
have  been  compelled  to  give  testimony  ;  there  the  objec- 
tion went  to  the  credibility,  not  to  the  competency  of 
the  witnesses.  The  accomplice  having  confessed,  can 
not  afterwards  refuse  to  answer.  H?  states  also,  that  an 
accomplice  being  a  competent  witness  by  law,  can  not 
be  privileged  from  giving  testimony,  without  a  special 
exemption.  Now  all  accomplices  are  persons  expressly 
excepted  by  the  law,  unless  they  waive  their  privilege, 
arid  voluntarily  come  forward  and  swear. 

Mr.  Wirt. — I  deny  that  Mr.  Martin  stated  my  argu- 
ment correctly.  It  is  not  a  confession  that  makes  an 
accomplice  a  witness.  Confession  does,  not  prevent  his 
being  a  witness ;  but  it  is  not  necessary  to  make  him 
one.  The  doctrine  is  that  of  approvers. 

Mr.  Martin. — All  the  cases  are,  where  the  accom- 
plice comes  forward  voluntarily. 

Mr.  Wirt. — Porter's  examination  (in  State  Trials) 
was  a  compulsory  examination  of  an  accomplice. 

Mr.  Martin. — That  case  is  not  authority.  It  is  an 
arbitrary  doctrine.  They  have  two  strings  to  their  bow, 
or  rather  two  stools  to  sit  on — the  treason  and  misde- 
meanor ;  that  they  may  repose  on  the  one,  should  the 
other  fail  them.  But  we  trust  that  both  will  fail  them. 
The  case  of  compulsory  examination  applies  to  treason 
only.  Lord  Audley's  was  a  case  of  rape,  not  of  treason. 
I  know  not  why  Christopher  Love's  case  was  intro- 


232  TRIAL    OF  AARON  BURR. 

duced,  unless  it  were  to  show  the  coarse  language 
used  in  those  days  by  prosecutors  and  judges.  There  is 
nothing  else  remarkable  in  it.  A  m:m  -refused  to  swear, 
and  he  was  committed  for  it.  That  a  witness  may  be 
committed  for  not  swearing,  but  not  for  not  answering 
questions,  is  said  to  be  my  argument,  and  very  uncan- 
did  deductions  are  made  from  what  is  called  my  posi- 
tion. I  never  was  so  weak  as  to  think  or  to  say,  that  a 
witness  was  obliged  to  be  sworn  ;  and  yet  that  he 
might  withhold  testimony,  and  be  silent  at  his  whim  and 
pleasure.  No,  sir;  my  position  was  only,  that  a  witness, 
having  a  legal  reason  for  refusing  to  answer,  was  never 
committed  :  and  so  far  is  it  from  being  dependent  on 
his  whim,  th.it  he  must  swear  to  the  existence  of  this 
legal  reason;  and  as  much  reliance  is  to  be  put  on  his 
oath,  on  this  point,  as  on  any  other. 

I  ask  the  gentlemen  to  produce  any  authority  to 
show,  that  a  witness  can  be  compelled  to  answer,  where 
he  thinks  it  can  criminate  him ;  but  no  such  authority 
exists.  As  it  was  now  late,  Mr.  Martin  said  that  he 
could  not  finish  his  argument  to-day,  but  hoped  that 
the  court  would  adjourn  ;  and  that  he  should  be  per- 
mitted to  add  some  observations  to-morrow. 

WEDNESDAY,  June  i/th,  1807. 

Mr.  Hay  stated  to  the  court,  that  many  remarks  had 
been  made  yesterday,  respecting  the  letter  addressed 
to  Wmburn  (in  cypher) ;  that  it  had  been  insinuated, 
that  it  had  been  taken  improperly  if  not  felonously  from 
the  post  office;  that  this  was  evidently  done  to  affect 
the  character  of  General  Wilkinson,  who  having  been  in- 
formed of  it  wrote  him  the  following  note  on  the  subject: 

RICHMOND,   June   171/1,    1807. 

SIR, 

The  letter  addressed  to  Winburn  was  delivered  to  me 
by  Cnarles  Patton,  of  the  house  or'  "  Meeker,  William- 
son &  Patton,"  New  Orleans  ;  and  he  informed  me, 
was  transmitted  in  the  enclosed  envelope.  Respectfully, 
I  am,  sir,  your  obedient  servant, 

JAMES  WILKINSON. 

George  Hay,  esquire. 


THE  CYPHERED   LETTER.  233 

Mr,  Martin  requested  to  know  who  opened  the  letter, 
or  who  first  broke  the  seal? 

The  court  said  that  this  was  a  question  which  was  not 
before  it. 

Mi'.  Bolts  said  that  at  a  proper  time  they  would  bring 
it  before  the  court,  as  a  substantive  and  independent 
injury. 

Mr.  Martin  said,  that  General  Wilkinson  was  not  a 
proper  witness  to  remove  suspicions  from  himself.  He 
then  resumed  the  argument  which  he  left  unfinished 
yesterday. 

The  great  question  is  not,  whether  the  witness  ought 
to  answer  or  not?  But  whether  he  is  not  the  sole  judge 
whether  his  answer  to  the  question  will  criminate  him  or 
not?  I  contend  that  he  is  ;  and  it'  it  were  otherwise,  the 
provision  in  his  favor  would  be  nugatory.  He  ought  to 
answer  no  question,  if  it  tend  or  lead  to  criminate  him. 

The  first  gentleman  who  spoke  for  the  prosecution,  on 
this  point,  manifested  candor.  He  advised  us  not  to 
wander  from  the  question.  The  advice  was  good  ;  I 
wish  they  had  followed  their  own  advice.  If  good  advice 
had  been  followed,  the  post-offices  would  not  have  been 
violated.  Was, their  advice  given  as  a  caution  by  these 
kind,  indulgent  friends?  Or  was  it  to  excite  prejudices 
against  Mr.  Burr?  Many  and  strong  attempts  have 
been  made  to  prevent  a  fair  trial.  The  newspapers,  and 
party-writers,  are  emploved  to  cry  and  write  him  down. 
His  counsel  are  denounced  for  daring  to  defend  him. 
The  passions  of  the  grand  jury  are  endeavored  to  be 
excited  against  him,  and  the  very  judges  denounced  if 
they  do  not  decide  against  him,  at  all  events !  The  laws 
of  the  country,  on  the  contrary,  presume  every- man  in- 
nocent till  he  be  convicted.  How.  then,  can  such  pro- 
ceedings be  justified?  On  the  trial  before  ttie  petit 
jury,  I  admit  that  they  may  declare  as  counsel  that  Burr 
is  guilty  ;  but  at  this  stage  of  the  proceedings,  every  ob- 
servation should  be  avoided  that  may  create  or  excite 
prejudices  either  on  one  side  or  the  other.  I  hope  that 
the  zeal  of  gentlemen  will  be  moderated,  and  that  they 
will  remember-the  benignity  of  the  law,  which  declares, 
that  it  is  better  that  ten  guilty  men  should  escape  unpun- 
ished, than  that  one  innocent  man  should  be  punished. 


234  TRIAL    OF  AARON  BURR. 

Gentleman  say,  that  they  are  about  establishing1  the 
relevancy  of  the  paper.  They  do  not  know  its  contents  ; 
yet  they  take  it  for  granted,  that  it  is  material,  because 
we  oppose  it.  Heretofore  it  has  been  the  invariable 
practice  to  know,  in  such  cases,  and  to  produce  evi- 
dence both  of  the  contents  and  the  relevancy  of  such 
exhibits.  Suppose  the  letter  were  written  in  the  French 
language,  they  must  procure  a  translator  before  they 
could  read  it  as  testimony.  Yet  they  can  not  compel 
anybody  to  translate  it  against  his  will.  A  person  ought 
to  be  specially  sworn  as  an  interpreter,  to  translate 
truly  and  faithfully.  If  they  could  not  translate  it  them- 
selves, they  ought  to  have  procured  some  person  to  do 
it ;  for  the  court  is  not  bound  to  find  a  translator. 

The  gentlemen  say  that  there  is  this  distinction  :  that 
a  witness  is  not  compelled  to  answer  where  the  point 
to  which  he  is  questioned  is  not  in  issue,  but  that  he 
must  answer  where  it  is  in  issue.  No  such  distinction 
exists.  "No  evidence  ought  to  be  admitted  to  any 
point,  but  that  on  which  the  issue  is  joined."  This  is 
manifest  from  MacNally,  p.  2,  and  is  the  first  rule  of 
evidence  therein  stated.  The  court  is  to  judge  whether 
the  evidence  be  pertinent  to  the  issue  or  not. 

Mr.  Hay. — That  is  what  we  want. 

Mr.  Martin. — I  am  not  arguing  about  that ;  but  de- 
monstrating that  no  such  distinction  exists.  I  refer 
the  court  to  Hargrave's  Index  to  the  State  Trials.  ;>A 
witness  is  not  compelled  to  answer,  where  it  tends  to 
criminate  him,  nor  where  it  does  not  relate  to  the 
issue.' 

Mr.  Hay  and  Mr.  Wirt  wished  to  see  the  pages  re- 
ferred to. 

Mr.  Martin.  They  are  cases  in  the  Second  State 
Trials,  and  already  commented  upon.  I  cite  this  au- 
thority only  to  show  Hargrave's  opinion.  He  certainly 
is  of  opinion  that  if  a  witness  imagines  a  question  has  a 
tendency  to  criminate  him,  or  subject  him  to  a  Denalty, 
he  is  not  bound  to  answer  it. 

Mr.  Martin  then  read  Hoffman's  argument  in  the  trial 
oi  Smith,  to  show  the  question  put  to  Ogden,  concern- 
ing the  u  Leander's  "  destination.  He  also  quoted  the 
question  put  to  Mr.  Ogden  relative  to  his  first  acquaint- 


THE  CYPHERED  LETTER.  235 

ance  with  Miranda  ;  when  the  court  appeared  to  be  of 
opinion,  and  admitted  the  principle,  that  Mr.  Ogden 
was  not  bound  to  answer  any  question  which  might 
criminate  himself,  but  yet  declared  that  he  should 
answer  these  questions  put  to  him,  pp.  95,  96,  98  ;  and 
added,  that  Talmadge's  opinion  was  of  no  consequence, 
but  which  was  not  admitted  by  the  counsel  on  the  other 
side. 

Mr.  Hay. — It  is  irregular  to  read  the  arguments  of 
counsel  as  authority. 

Chief  Justice. — It  is  regular  to  read  them  only  as  ar- 
guments. 

Mr.  Hay  requested  Mr.  Martin  to  read  the  argu- 
ments in  the  same  case,  on  the  part  of  the  prosecution. 

Mr.  Martin,  after  some  conversation  on  this  point, 
read  the  words  of  the  prosecutor,  in  the  same  case,  and 
the  argument  of  Golden,  for  the  defendant,  and  a  part 
of  the  arguments  of  Mr.  Edwards,  one  of  the  counsel 
in  the  same  case.  There,  it  was  evident  that  the  court 
was  wrong.  There  was  a  question  refused  by  Ogden 
to  be  answered.  From  the  arguments  and  observations 
of  counsel  I  infer  that  they  waived  their  right  to  enforce 
the  law  against  Ogden.  They  declined  at  that  time 
calling  on  the  court  to  enforce  its  decision,  in  respect  to 
Ogden's  answering,  but  said  that  they  did  not  waive 
the  right  to  call  upon  him  thereafter  ;  but  they  never 
exercised  it.  From  which  it  may  be  reasonably  inferred 
that  they  had  not  the  fullest  confidence  in  the  opinion 
of  the  court,  but  thought  it  erroneous  or  doubtful. 

As  to  the  case  of  the  United  States  against  Goosely, 
the  counsel  merely  objected  from  memory  :  Mr.  Wirt 
only  read  a  part  of  it  from  Call's  manuscript  report  of 
it,  p.  140.  But  why  did  not  the  gentleman  read  the 
whole  of  that  case?  If  he  had  read  another  part  of  it, 
it  would  have  explained  the  law  much  more  fully,  and 
proved  that  a  witness  could  not  be  compelled  to  an- 
swer a  question  which  might  tend  to  implicate  or  crim- 
inate himself.  [Here  the  case  of  the  United  States  vs. 
Goosely  was  fully  read.  Vide  ante.'] 

Here,  then,  is  a  decisive  authority  that  my  position  is 
correct,  as  far  as  the  opinion  of  one  very  respectable 
judge  (Judge  Iredell)  goes. 


236  TRIAL     OF    AARON    BURR. 

Mr.  Martin  then  read  from  Mac  Nally,  p.  258,  the 
authority  relied  on  by  the  other  side,  the  case  of  the 
King  against  Edwards,  accused  of  grand  larceny.  One 
of  his  bail  was  asked  whether  he  had  net  stood  in  the 
pillory  for  perjury  ?  The  question  was  objected  to  as 
tending  to  criminate  him.  but  overruled.  He  said  that 
both  in  England  and  Maryland, and  in  every  State  whose 
laws  he  had  had  occasion  to  investigate,  the  law  ex- 
empted in  penal  cases  a  witness  from  criminating  him- 
self. This  case,  in  Mac  N.illy,  258,  and  4  Term  Re- 
ports, 440,  is  the  only  authority  relied  on  as  establish- 
ing the  opinion  that  a  witness  may  be  examined  as  to 
matters  that  make  him  infamous.  It  means,  where  a 
witness  has  been  convicted  of  an  infamous  crime,  and 
has  suffered  the  execution  of  the  judgment,  that  he  may 
be  questioned  as  to  that  fact.  That  was  a  case  where 
bail  was  called  on  to  justify  as  to  the  sufficiency  of  his 
property,  and  the  objection  was  to  his  credibility,  on  ac- 
count of  his  former  infamy,  where  he  had  been  pun- 
ished, but  could  not  be  subjected  to  any  further  penalty. 
I  doubt,  however,  this  authority.  Tiie  prosecutions  for 
treason  in  England  have  been  generally  conducted  with 
candor  and  gentleness.  These  authorities  (or  rather 
this  authority,  as  there  is  but  one  case),  however  they 
may  be  justified,  are  more  rigid  than  formerly.  They 
are  of  modern  invention.  The  mild  maxim  of  the  law 
is,  %i  nemo  tenetur  seipsum.  accusare.""  Even  after  a  man 
is  pardoned  for  a  crime,  he  is  not  bound4to  show  his  own 
former  turpitude  or  infamy :  2  State  Trials,  822.  An 
additional  authority  on  this  point  is  I  Mac  Nally,  212, 
rule  the  sixth,  where  it  is  said,  that  "  whenever  the 
competency  of  a  witness  is  objected  to,  on  the  charge 
of  conviction  and  judgment  on  an  infamous  crime,  the 
party  making  the  charge  must  produce  in  the  court  the 
record  of  the  judgment,  stib  pede  xiyiUi"  which  shows 
that  such  evidence  could  not  be  extorted  from  the  wit- 
ness himself.  There  was  no  instance  of  such  doctrine 
until  the  decision  of  the  King  v.  Edwards,  in  4  Term 
Reports.  Until  that  decision,  the  rule  of  law  was 
sacred,  that  a  record  was  necessary  to  be  produced  to 
prove  perjury.  The  relaxation  of  the  law.  with  respect 
to  witnesses,  is  for  the  benefit  of  the  party,  because  he 


THE    CYPHERED    LETTER.  237 

does  not  know  what  witness  will  be  brought  against  him. 
Peake,  88,  explains  this  to  be  the  reason.  That  a  wit- 
ness may  be  asked,  whether  he  had  been  convicted  and 
punished  ?  4  Term  Reports,  440 ;  was  a  decision  in  the 
year  1791,  since  the  revolution.  It  may  ba  no  authority. 
We  do  not  know  whether  our  courts  of  justice  will  adopt 
this  law-rule  or  not.  It  has  not  been  adopted  in  Mary- 
land. It  has  no  bearing  on  the  question.  The  true 
question  is,  whether  the  court  has  a  right  to  inquire  into 
the  circumstances,  or  whether  the  witness  is  the  sole 
judge  whether  he  ought  to  answer  or  not?  Let  us  re- 
vert to  the  authorities  before  cited  by  us.  Mac  Nally 
256  :  ';  Hilsley,  a  Roman  Catholic  witness,  bsing  again 
asked  by  Titus  Oates,  by  virtue  of  his  oath,  whether  the 
house  where  he  lodged,  at  St.  Omers,  was  not  governed 
by  priests  and  Jesuits  ?"  That  was  apparently  an  inno- 
cent question  ;  but  as  it  might  be  made  a  link  in  a  chain 
of  testimony  that  would  criminate  him,  the  chief  justice 
said  it  was  not  a  question  fit  to  be  asked,  and  told  the 
witness  that  he  was  not  bound  by  his  oath  to  answer  it. 
Mac  Nally  has  put  in  that  he  was  a  Roman  Catholic 
priest,  but  nothing  appears  (in  the  report  of  the  same 
case  in  State  Trials)  to  the  court,  of  his  being  a  priest. 
The  court  determined  that  they  were  not  to  go  into  the 
circumstances  ;  'because,  thereby  facts  criminating  the 
witness,  would  be  disclosed,  in  order  to  show  how  an  an- 
swer to  the  question  would  criminate  hitn,  so  that  by  his 
answer  he  would  lose  the  privilege  of  the  law.  In  the 
case  of  the  voir  dire,  if  a  witness  think  himself  interested, 
he  is  excused  from  being  sworn.  We  admit,  that  in  this 
case,  the  witness  m.iy  be  swjra;  but  insist  that  he  is 
not  to  answer  questions  which  he  thinks  may  tend  to 
criminate  him.  His  b;ing  interested,  ought  to  exempt 
him  from  giving  evidence,  as  in  the  case  of  the  voir  dire. 
There  is  no  difficulty  in  going  into  circumstances  on  the 
voir  dire.  Disclosures  can  do  no  injury.  But  it  is  not 
so,  it'  he  think  himself  interested  :  he  is  excused,  without 
any  examination  into  circumstances.  Tnis  rule  is  laid 
down  explicitly  in  Mac  N.iily,  140,  that  "  if  a  witness 
think  himself  interested,  although  in  point  of  fact  he  is 
not,  he  should  not  be  examined  as  a  witness."  A  for- 
tiori, in  a  case  where  his  honor,  fame,  and  life  are  in 


238  TRIAL   OF  AARON  BURR. 

question,  if  a  witness  think  that  his  answer  will  criminate 
him,  he  ought  not  to  answer.  Does  it  not  aoply  with 
tenfold  force  ?  It  would  drive  men  to  perjury,  if  witnesses 
were  compelled  to  answer  in  such  circumstances  ;  and 
Lord  Mansfield  has  always  laid  it  down  as  a  great 
maxim,  that  men  ought  not  be  exposed  to  temptation. 

But  it  is  said,  that  if  an  attorney  be  called  to  give  evi- 
dence, the  court  ought  to  decide  whether  he  ought  to  be 
excused,  and  that  he  is  not  judge  for  himself.  By  anal- 
ogy, this  is  in  our  favor.  The  privilege  belongs  not  to 
the  attorney,  but  to  the  client.  The  court  in  such  cases 
only  asks  him,  whether  his  client  made  the  communica- 
tion to  him  as  an  attorney,  or  otherwise  ?  but  the  court 
goes  no  further.  So  in  this  case  they  ought  only  to  ask 
the  witness,  if  he  think  his  answer  will  criminate  him  ? 
and  it  is  impossible  to  obtain  from  him  an  explanation 
of  the  effect  of  his  answ3r,  without  taking  away  from 
him  the  protection  of  the  law. 

If  he  gave  it  secretly  to  the  judges,  they  might  be 
compelled  to  reveal  it,  however  confidentially  communi- 
cated. The  authority  in  I  Cranch,  in  the  case  of  Marbury 
v.  Madison,  is  said  to  be  conclusive  in  their  favor.  I  thank 
them  for  adducing  it.  It  is  strongly  in  our  favor,  because 
there  the  witness  was  not  compelled  to  give  the  evidence 
required.  Gentlemen  say  that  they  disapprove  of  part  of 
the  authority  ;  and  so  I.  disapprove  of  so  much  of  it  as 
declares  that  the  court  did  not  think  themselves  emoow- 
ered  to  issue  the  mandamus  to  the  Secretary  of  State. 
They  say  that,  in  that  case,  the  witness  was  bound  to 
state,  and  did  state  his  objection  to  answer.  We  admit 
it,  and  we  state  our  objection.  The  witness  says,  "  It 
tends  to  criminate  me,"  and  this  objection  is  sufficient. 
But  gentlemen  say  that  we  have  produced  no  authority 
in  support  of  our  argument.  I  insist  that  the  opinion  of 
Judge  Iredell  in  Goqseley'scase,  and  the  case  referred  to 
from  9  State  Trials,  are  conclusive  in  our  favor.  The  at- 
torney for  the  United  States  has  told  us,  that  he  expected 
a  great  deal  would  be  said  by  us,  but  it  would  not  produce 
conviction  on  his  mind.  We  hope  to  convince  the  court, 
but  we  do  not  expect  to  produce  conviction  on  the  im- 
penetrable mind  of  Mr.  Hay,  which  is  harder  than  Ajax's 
seven-fold  shield  of  bull's  hides.  I  do  not  think  it  neces 


THE  CYPHERED  LETTER.  239 

sary  to  say  more,  than  once  more  to  express  our  hopes 
of  a  favorable  decision. 

Mr.  Wickham. — I  shall  add  a  few  remarks  to  what 
has  been  already  said,  and  trust  that  the  importance  of 
the  subject  will  be  my  excuse.  I  mean,  that  the  prin- 
ciple is  of  very  great  importance  ;  for  as  to  the  paper 
it  is  of  but  little. 

They  contend  that  Mr.  Burr  is  liable  for  the  letters  of 
persons  connected  with  him,  however  remote  the  con- 
nection, and  whatever  may  be  the  contents  of  the  letters. 
This  principle  is  too  general,  and  more  dangerous  than 
it  is  comprehensive.  We  do  not  admit  it,  either  in  its 
application,  or  in  the  extent  insisted  on.  It  may  be 
constructed  in  the  most  dangerous  manner.  Blanner- 
hasset,  stated  to  be  connected  with  him,  is  said  to  be 
imprudent  and  of  a  singular  turn  of  thinking.  Is  Mr. 
Burr  to  be  responsible  for  all  his  actual  and  verbal  eccen- 
tricities, merely  because  he  was  acquainted  with  him  ? 
I  thought  before  that  no  man  was  liable  for  the  acts  of 
another,  unless  done  by  his  authority  or  contrivance. 
Though  we  do  not  admit  principles  contended  for  by  the 
gentlemen  on  the  other  side  (which  we  sincerely  believe 
to  be  unjust  and  unfounded)  yet  as  it  is  not  impossible 
but  the  court  may  decide  against  us,  it  is  our  duty  to 
oppose  them.  This  is  a  governing  principle  which  may 
run  through  the  whole  cause,  and  will  apply  to  every 
other  similar  evidence.  We  deem  it  our  indispensable 
duty  to  oppose  the  testimony  now  adduced,  to  affect 
Mr.  Burr  with  the  acts  of  others.  Was  it  fair  to  sound 
so  much  alarm  and  prejudice  throughout  the  whole 
country,  because  we  stated  and  availed  ourselves  ot 
these  legal  objections?  1  am  not  well  acquainted  with 
that  branch  of  the  science  which  is  called  criminal  law, 
and  I  hope  to  become  less  so ;  but  I  had  always  thought 
that  more  protection  was  necessary  and  afforded  by  the 
law,  for  the  rights  of  individuals,  in  criminal  than  in 
other  cases.  If  other  prosecutors  act  like  these,  I  am 
mistaken.  I  never  knew  before,  declarations  made 
against  any  person  for  standing  on  the  rules  of  law.  I 
never  knew  before,  that  a  citizen  is  to  be  reviled  for  ad- 
hering to  the  laws  of  his  country.  The  court  ought  to 
stop  gentlemen  who  make  such  an  objection. 


24o  TRIAL     OF    AARON    BURR. 

But  it  is  said  that  "  public  prejudice  is  excited  by  his 
mode  of  defense !  "  It'  his  claiming  legal  rights  excite 
prejudice,  we  need  not  try  him,  but  convict  him  at  once 
without  a  trial.  The  witness  ought  not  to  be  compelled 
to  answer.  The  examination  of  facts  leads  to  the  dis- 
covery which  he  seeks  to  avoid.  He  is  on  his  oath.  If 
he  commit  p'erjury  in  answering  this  interrogatory,  he 
would  do  so  in  any  other  case.  The  question  asked  a 
(Roman  Catholic)  witness,  what  business  lie  had  at  St. 
Omers  six  years  before,  and  what  profession  he  was  of, 
are  innocent  questions:  yet  in  both  instances  the  wit- 
ness was  excused  from  answering,  because  he  thought 
it  would  criminate  him. 

They  tell  us,  "  that  this  objection  admits  the  guilt  of 
Mr.  Burr.''  No,  it  only  admits  that  he  is  under  prose- 
cution. Does  it  not  endanger  this  young  man  of  being 
arraigned,  if  he  own  connection  with  Mr.  Burr?  Is  not 
an  innocent  man  in  danger  of  conviction  by  perjury  ? 
The  whole  strength  of  the  government  is  exerted  against 
the  prisoner.  The  government  would  not  suborn  wit- 
nesses ;  but  bad  men  might  think  to  render  an  accept- 
able service  by  swearing  falsely  against  a  party  under 
prosecution.  The  danger  is  real,  though  the  party  ac- 
cused is  innocent. 

As  to  Goosely's  case,  gentlemen  suppose  me  mis- 
taken. Mr.  Win.  Marshall's  (the  clerk  of  the  court) 
recollection  corresponds  with  mine.  Our  remembrance 
is  confirmed  by  Mr.  Randolph,  who  was  counsel  in  the 
case,  and  by  the  judge.  Reynolds  was  an  accomplice, 
and  was  proved,  by  the  finding  of  the  grand  jury  on  the 
record,  to  be  an  innocent  man;  and  it  was  determined 
that  he  was  not  bound  to  give  testimony  against 
Goosely,  because  it  might  tend  to  criminate  himself. 
The  case  is  the  same  here.  Willie,  the  secretary  of,  is 
connected,  with,  Burr.  They  might  send  up  to  the 
grand  jury  a  bill  of  indictment  against  him,  if  they  did 
not  think  him  too  insignificant.  The  witness,  like  most 
other  men,  may  estimate  his  own  importance  more 
highly  than  others  might  be  disposed  to  do.  A  ques- 
tion, "where  were  you  on  such  a  day?  "  is  an  innocent 
one;  yet,  as  it  might  tend  to  criminate  him  by  being 
connected  with  other  evidence,  the  court  excused  a 


THE     CYPHERED    LETTER.  241 

»tness  from  answering  it.  The  question  at  present  be- 
»ore  the  court  is  of  the  same  nature,  and  his  answer 
may  be  made,  with  the  aid  of  other  testimony,  to  crim- 
inate him. 

As  to  the  authority  from  Mac  Nally,  that  a  man  is1 
bound  to  answer  the  question  whether  he  had  been  pun- 
ished for  a  crime  or  not  ?  I  shall  observe  that  a  man's 
answering  whether  he  had  been  punished,  can  not  injure 
his  character,  because  the  punishment  is  public ;  if  it 
were  private,  he  would  not  be  compelled  to  answer. 
Every  man  i$  indifferent  until  sworn.  He  ought  to 
refuse  to  be  sworn  to  any  inquiry  tending  or  leading  to 
implicate  him.  The  secret  is  locked  up  in  his  own 
breast ;  you  can  not  know  that  such  a  secret  exists  until 
he  be  examined,  and  you  have  no  right  to  extort  it  from 
him  to  his  own  injury.  I  am  sorry  that  so  much  time  is 
consumed  on  so  plain  a  question:  but  as  it  is  important, 
as  it  respects  the  progress  of  the  investigation,  I  hope 
we  shall  be  excused. 

Here  some  conversation  ensued  between  Mr.  Wirt  and 
Mr.  Martin,  respecting  the  legal  authorities  referred  to 
by  Mr.  Wirt,  and  supposed  to  have  been  admitted  by 
Mr.  Martin. 

After  some  further  desultory  conversation,  the  chief 
justice  asked  whether  there  were  any  other  question  be- 
fore the  court  ? 

Mr.  Mac  Rae  requested  a  decision  on  Dr.  Bollman's 
case,  as  he  wished  to  interrogate  him  about  the  cyphered 
letter. 

Mr.  Williams  was  ready  to  discuss  the  question. 

Mr.  Burr. — There  will  arise  some  very  important 
questions,  affecting  the  very  sources  of  the  jurispru- 
dence of  this  country.  I  have  several  affidavits  to 
produce  to  show  that  improper  means  have  been  used 
to  procure  witnesses,  and  thereby  contaminate  the  pub- 
lic justice ;  when  these  proofs  have  been  duly  exhibited, 
it  will  be  the  province  of  the  court  to  decide,  whether 
they  will  not  arrest  the  progress  of  such  improper 
conduct,  and  prevent  the  introduction  of  such  evi- 
dence. 

Mr.  Botts. — I  rise  to  apprise  the  opposite  counsel,  that 
there  are  three  or  four  questions  of  considerable  import- 
i.~ 16 


242  TRIAL  OP  AARON  BVRR. 

ance  which  we  shall  bring  forward  as  soon  as  possible. 
Two  or  three  days  ago,  I  commented  upon  the  plunder 
of  the  post-offices ;  and  I  assure  the  counsel  for  the 
prosecution,  that  I  shall  probe  that  subject  to  the 
bottom  ;  as  no  man  can  be  more  anxious  than  myself 
that  the  stigma  which  this  transaction  attaches  to  the 
inferior  or  superior  officers  of  the  government  should 
be  wiped  off.  As  a  private  citizen,  or  as  counsel  for  my 
client,  I  shall  be  sincerely  pleased  with  a  fit  opportunity 
of  retracting  the  expressions  which  I  have  employed. 
The  court  will  at  once  perceive  the  necessity  of  going 
into  this  inquiry  at  a  very  early  period  ;  for  if  the  officers 
of  government  have  hitherto  broken  open  letters  from 
Mr.  Burr,  they  may  hereafter  resort  to  the  very  same 
expedient  ;  and  by  thus  obstructing  the  very  medium  of 
communication  between  Mr.  Burr  and  his  witnesses, 
prevent  him  from  summoning  them,  and  preparing  for 
his  defense.  One  more  remark:  yesterday  I  understood 
Mr.  Hay  to  charge  us  with  having  made  certain  insinua- 
tions against  persons  not  actually  named.  He  demanded 
why  we  had  not  forborne  these  charges,  until  we  were 
prepared  to  support  them  ?  That  remark,  sir,  struck  me 
with  peculiar  force.  I  was  of  the  same  opinion,  that 
some  proof  ought  to  be  produced;  I  immediately  rose 
and  professed  my  wishes  to  go  into  an  investigation  of 
the  case.  But,  sir,  little  did  I  expect  that  the  gentleman 
would  have  proceeded  to  have  justified  these  crimes. 
Little  did  I  expect  that  such  felonious  transactions 
should  have  been  blazoned  into  mighty  virtues,  or  that 
it  would  have  ever  been  maintained  in  this  court,  that 
the  persons  who  had  failed  to  plunder  the  post-offices, 
would  have  been  guilty  of  a  dereliction  of  their  duty. 
The  offer  to  go  into  the  evidence  operated  as  magic  :  he 
justified  what  he  had  before  denied.  I  wish,  sir,  to  ex- 
plore the  post-office  laws  to  see  whether  they  do  not 
contain  some  provision,  prohibiting  the  introduction  of 
testimony  thus  illegally  obtained. 

Chief  Justice. — Unless  these  allegations  affected  some 
testimony  that  was  about  to  be  delivered,  how  can  you 
introduce  this  subject  ? 

Mr.  Hay  informed  the  court  that  Colonel  Morgan 
was  at  that  time  before  the  grand  jury,  and  they  had 


THE    CYPHERED    LETTER.  243 

sent  for  a  letter  from  Aaron  Burr  to  him.  Should 
the  letter  (holding  it  in  his  hand)  be  sent  to  the  grand 
jury  ? 

Mr.  Botts  requested  to  see  it.  Here,  said  he,  is  a 
small  piece  of  newspaper  attached  to  it,  which  ought 
not  to  accompany  it  before  the  grand  jury. 

Mr.  Burr. — I  have  no  objection  that  any  of  my  let- 
ters should  be  sent  up  ;  but  I  trust,  sir,  it  will  be  separ- 
ated from  this  bit  of  a  newspaper,  and  this  comment 
which  Mr.  Morgan  has  attached  to  it. 

The  letter  was  handed  to  the  chief  justice  ;  who  ob- 
served, that  the  only  use  of  the  newspaper  was  to  show, 
that  at  that  time  Mr.  Burr  was  at  Pittsburg. 

Mr.  Hay  said  it  was  nothing  more  than  to  refresh  his 
memory. 

The  chief  justice  decided  that  it  was  right  to  dissever 
it  from  the  letter;  the  newspaper  itself  was  no  evi- 
dence ;  but  if  Colonel  Morgan  would  wish  to  refresh 
his  memory,  there  could  be  no  objection.  They  were 
accordingly  separated  by  the  directions  of  the  court ; 
one  was  sent  to  the  grand  jury,  and  the  other  to  Colonel 
Morgan. 

Mr.  Burr. — The  court  has  very  properly  demanded 
some  proof  of  the  revelancy  of  our  proposition.  Sir, 
we  are  ready  to  prove  the  violation  of  the  post-office. 
We  are  ready  to  fasten  it  on  individuals  now  here,  and  we 
are  ready  to  name  the  post-offices,  if  the  court  .require 
it,  which  have  been  thus  plundered.  When  it  comes 
out,  that  evidence  has  been  thus  improperly  obtained,  we 
shall  say,  sir,  that  it  is  contaminated  by  fraud.  I  will 
name  three  peasons  who  have  been  guilty  of  improper 
conduct,  in  improperly  obtaining  letters  from  the  post- 
office,  to  be  evidence  against  me.  These  are,  Judge 
Toulmin,  of  the  Mississippi  Territory,  Jahn  G.  Jackson, 
a  member  of  congress,  and  General  Wilkinson.  Two  of 
these  persons  are  within  the  reach  of  this  court.  As 
well  as  the  improper  manner  in  which  they  have  pro- 
cured affidavits  and  witnesses  against  me,  I  mention 
these  circumstances  for  two  reasons :  First,  that  the  facts 
may  be  proved  to  the  satisfaction  of  the  court :  and  sec- 
ond, that  the  court  may  lay  their  hands  on  testimony 
thus  procured. 


244  TRIAL  OF  AARON  BURR. 

Mr.  Botts. — The  circumstance  of  the  post  mark 
proves  that  the  post-office  was  robbed  of  that  letter  ; 
therefore  it  is  not  evidence. 

The  chief  justice  said  let  the  consequences  be  as  they 
may,  this  court  can  not  take  cognizance  of  any  act  which 
has  not  been  committed  within  this  district.  That  mark 
is  not  necessarily  a  post  mark.  The  court  can  only 
know  the  fact,  in  a  case  to  which  it  applies,  except  to 
commit  and  send  for  trial. 

Mr.  Hay. — Let  some  specific  motion  be  made,  and  the 
evidence  procured  ;  and  if  there  have  been  any  crime 
committed,  let  the  offenders  be  prosecuted  according  to 
law.  These  gentlemen  know  the  course ;  and  I  most 
solemnly  promise  to  discharge  fthe  duties  of  my  office, 
whether  they  bear  against  General  Wilkinson,  or  the 
man  at  the  bar.  If  the  crime  have  been  committed,  it 
is  not  the  province  of  the  court  to  notice  it  till  after  an 
indictment  has  been  found. 

Mr.  Botts. — We  only  wish  to  prove,  and  prevent  a  re- 
pitition  and  continuance  of  this  improper  mode  of  pro- 
ceeding. The  proof  will  affect  General  Wilkinson. 

Chief  Justice. — If  it  did  affect  General  Wilkinson,  it 
could  not  prevent  him  from  being  a  witness. 

Some  desultory  conversation  here  ensued,  when  Mr. 
Burr  observed,  that  he  was  afraid  he  was  not  sufficiently 
understood,  from  mingling  two  distinct  propositions  to- 
gether. As  to  the  subject  of  the  post-offices,  it  might 
rest  for  the  present ;  but  as  to  the  improper  means  em- 
ployed in  obtaining  testimony,  they  were  at  this  moment 
in  actual  operation.  Some  witnesses  had  been  brought 
here  by  this  practice  ;  and  it  was  one  which  ought  im- 
mediately to  be  checked :  he  did  not  particularly  level 
his  observations  against  General  Wilkinson.  He  did  not 
say,  that  the  attorney  for  the  United  States  ought  to 
indict,  or  that  such  a  crime  if  committed  out  of  this  dis- 
trict was  cognizable  by  the  court,  unless  it  be  going  on 
while  the  court  is  in  session,  or  the  cause  depending  ;  in 
those  cases  improper  practices  relative  to  crimes  com- 
mitted out  of  the  limits  of  this  court  may  be  examined, 
and  the  persons  committing  them  attached.  Such  prac- 
tices have  been  since  I  have  been  recognized  here,  a  id 
they  ought  to  be  punished  by  attachment. 


MOTION    FOR    AN    ATTACHMENT.        ^45 

Mr,  Wirt — I  do  not  yet  understand  the  gentlemen. 
What  is  the  object  of  their  motion  ? 

Mr.  Botts. —  We  shall  hereafter  make  it ;  we  have  no 
other  object  by  the  present  annunciation,  than  to  give 
gentlemen  a  timely  notice  of  our  intentions. 

Mr.  Burr. — We  have  sufficient  evidence  on  which  to 
found  our  motion. 

Mr.  Hay. — What  motion  ?  . 

Mr.  Burr. — I  thought,  sir,  I  had  sufficiently  explained 
my  intentions.  I  may  either  move  for  a  rule,  to  show 
cause  why  an  attachment  should  not  issue  against  Judge 
Toulmin,  John  G.  Jackson,  and  General  Wilkinson,  or 
what  is  sometimes,  though  not  so  frequently  practiced,  I 
may  directly  move  for  an  attachment  itself. 

Mr.  Mac  Rae. — At  whose  motion. 

Mr.  Burr. — At  the  public's. 

Mr.  Mac  Rae. — A  pretty  proceeding  indeed  !  that  the 
public  prosecution  should  thus  be  taken  out  of  the  hands 
of  the  public  prosecutor,  and  that  the  accused  should 
supersede  the  attorney  for  the  United  States! 

Mr.  Burr. — A  strange  remark  indeed  !  As  if  it  were 
not  the  business  of  the  injured  person  himself  to  institute 
the  complaint. 

Mr.  Hay. — I  wish  for  further  explanation.  Let  the 
specific  charge,  on  which  their  motion  is  founded,,  be 
clearly  pointed  out  and  reduced  to  writing. 

Mr.  Burr. — The  motion  will  be  for  an  attachment,  for 
the  irregular  examination  of  witnesses,  practicing  on  their 
fears,  forcing  them  to  come  to  this  place,  and  transport- 
ing them  from  New  Orleans  to  Norfolk. 

At  this  moment  Mr.  Randolph  entered  the  court,  and 
observed,  that  if  he  had  been  present,  he  would  have 
himself  opened  this  motion ;  which  was  intended  to  oper- 
ate immediately  upon  General  Wilkinson,  and  ultimately 
upon  some  other  persons.  Mr.  Randolph  here  read  the 
motion  which  he  would  have  submitted  to  the  court. 

Mr.  Hay  protested  against  this  proceeding  ;  which  was 
calculated  to  interrupt  the  course  of  the  prosecution ; 
and  was  levelled  at  General  Wilkinson  alone.  He  asked 
why  these  hints?  Why  these  mysterious  looks  of  awe 
and  terror,  with  which  gentlemen  come  into  this  court, 
l.s  if  they  had  something  to  communicate  which  was  too 


246  TRIAL     OF    AARON    BURR. 

horrible  to  be  told?  Was  Mr.  Randolph  [when  attorney- 
general,  it  is  presumed  he  meant]  ever  interrupted  in  the 
midst  of  one  prosecution,  by  introducing  another?  Do 
they  wish  to  intercept  General  Wilkinson  from  going  to 
the  grand  jury  ?  Mr.  Hay  claimed  from  the  court,  a  pri- 
ority for  the  business  of  the  United  States.  Let  the 
present  prosecution  be  concluded  ;  and  gentlemen  may 
then  proceed  with  their  investigation  into  the  conduct 
of  General  Wilkinson. 

Mr.  Randolph. — The  gentlemen,  sir,  will  understand 
this  subject  much  better  to-morrow.  I  understood  the 
motion  was  to  be  postponed  till  to-morrow  ;  but  as  he 
asked  for  some  intimation  of  our  designs,  I  thought  proper 
to  accompany  it  with  a  few  remarks.  And,  sir,  if  this 
affair  be  really  so  stupendous,  as  I  conceive  it  to  be,  if  it 
be  true  [Mr.  Hay  exclaimed  that  it  was  not]  is  it  not 
entitled  to  the  most  serious  inquiry  ?  If  this  subject  bear 
upon  the  present  case,  though  it  may  influence  the  result 
of  the  trial,  ought  it  to  be  suppressed  ?  Your  honor  will 
direct  me  when  to  come  out ;  and  I  assure  your  honor, 
that  It  is  not  merely  conjecture,  but  fact.  I  shall  come 
forward  with  the  affidavit  of  one  of  the  witnesses  to  sup- 
port our  motion. 

Mr.  Martin. — The  gentleman  is  on  his  heroics.  He 
will  protest  where?  In  "The  Argus,"  I  suppose.  He 
hopped  up  like  a  parched  pea,  to  make  his  protest 
against  our  motion.  He  insists  that  we  shall  postpone 
it  till  the  trial  is  over,  and  the  evil  is  done  !  The  court 
and  grand  jury  may  be  engaged  in  twenty  different 
prosecutions  at  the  same  time.  We  shall  prepare  our 
motion,  and  make  it  to-morrow. 

Mr.  Hay". — I  hope  the  court  will  decide  not  to  hear  it 
till  this  business  is  over.  My  protest  will  not  have  the 
tenth  p^rt  of  the  effect  of  the  attic  wit  of  Mr.  Martin. 
I  have  a  great  deal  of  feeling,  but  it  is  not  such  as  can 
be  excited  by  the  elegant  comparisons  of  that  gentle- 
man. Comparisons  are  always  odious.  This  is  expres- 
sive of  contempt,  and  is  viewed  as  it  ought.  Mr.  Hay 
then  expatiated  at  some  length.  He  understood  the 
object  of  this  motion  was  to  affect  the  credibility  of  Gen- 
eral Wilkinson's  testimony  ;  and  in  what  way  ?  He  pre- 
sumed that  the  court  would  not  notice  the  pretended 


MOTION    FOR    AN    ATTACHMENT.       247 

transactions  which  had  been  alluded  to,  in  any  other 
way,  than  as  amounting  to  a  contempt.  As  to  any  other 
offense  against  the  laws  of  the  United  States,  the  true 
course  would  be,  to  proceed  in  the  way  of  a  presentment, 
or  indictment  in  the  regular  way.  Now,  what  are  the 
principles  of  the  law  of  contempt  in  relation  to  this  sub- 
ject? General  Wilkinson  is  said  to -have  taken  the  de- 
positions of  certain  persons  in  New  Orleans,  and  then  to 
have  brought  these  reluctant  witnesses  hither  by  mili- 
tary force.  This  is  the  only  ground  of  the  contempt 
against  this  court?  But  how  can  a  contempt  be  com- 
mitted ?  Either  by  directly  insulting  this  court  or  abus- 
ing its  process,  or  interrupting  its  justice.  Will  it  be 
said  that  General  Wilkinson's  conduct  comes  under 
either  of  those  descriptions  ? 

Gentlemen  have  very  often  been  pleased  to  put  words 
into  our  mouths  ;  and  on  one  occasion,  they  have  made 
us  to  say  that  General  Wilkinson  is  the  "  pivot  of  the 
prosecution."  And  is  it  this  very  pivot  which  they  are 
now  attempting  to  remove  or  pare  down,  by  this  precipi- 
tate application  ?  It  is  my  duty  to  vindicate  him  from  this 
unjust  charge,  which  is  as  immaterial  as  it  is  unjust. 
Are  the  communications  between  the  court  and  the 
grand  jury  to  be  thus  interrupted  ?  Is  their  examina- 
tion to-be  suspended  until  General  Wilkinson  has  been 
put  upon  his  trial  ?  If  these  suspected  transactions  do 
amount  to  a  contempt  of  this  court,  ft  is  not  my 
business  officially  to  notice  it.  It  is  of  no  consequence 
to  them  whether  they  prevail  in  their  motion  or 
not  ;  their  purpose  is  attained  ;  their  pompous  declama- 
tion, that  Wilkinson  is  a  despot,  and  acted  tyrannically, 
is  intended  to  excite  prejudice  against  him. 

Mr.  Hay  then  said  that  he  should  move  to  postpone 
the  motion  of  gentlemen  until  the  prosecution  was  over, 
for  several  reasons:  because  it  would  necessarily  inter- 
rupt the  business  before  the  court  ;  because  it  was  in- 
tended to  impeach  the  credit  of  a  witness  ;  and  because 
this  inquiry  could  be  as  well  conducted  after  as  before 
the  prosecution. 

Mr.  Mac  Rae. — I  will  affirm,  sir,  in  the  presence  of 
this  court,  and  the  surrounding  people,  that  the  charge 
now  adduced  against  General  Wilkinson  is  completely 


248  TRIAL    OF  AARON  BURR. 

unfounded.  I  affirm,  that  no  witness  has  been  brought 
forcibly  by  General  Wilkinson  from  New  Orleans  ;  one 
individual  came  reluctantly,  escorted  ;  who,  refusing  to 
obey  the  summons  of  the  government,  was  regularly 
brought  before  a  magistrate,  for  his  disobedience,  and 
dealt  with  according  to  the  due  course  of  law;  and  who 
is  now  in  the  custody  of  a  person  before  this  court.  All 
the  rest  came  as  good  citizens  ought  to  have  done ; 
and  the  only  fault  which  can  possibly  be  attributed  to 
them,  if  it  be  a  fault,  is,  that  they  came  in  the  United 
States  vessel  in  which  General  Wilkinson  was  authorized 
to  come. 

Mr.  Wickham. — May  I  request  the  liberty,  sir,  of 
making  a  few  remarks  upon  Mr.  Hay's  motion  ?  Mr. 
Burr  brought  forward  his  motion  in  the  simplest  style 
possible.  There  was  no  imputation  ;  there  was  no  at- 
tempt to  excite  the  public  feelings.  He  merely  stated 
his  object  in  the  most  general  terms  ;  he  ought  to  have 
been  understood.  The  gentlemen,  however,  misunder- 
stood him.  They  required  a  specification  of  our  designs  ; 
we  gave  it  to  them  in  writing,  and  then  we  promised  to 
bring  forward  our  motion  to-morrow.  They  still  in- 
sisted upon  a  more  particular  explanation  of  our  points  ; 
and  Mr.  Randolph  rose  and  spoke  to  gratify  them. 
Nothing,  however,  seems  to  please  those  gentlemen. 
They  not  only  found  fault  with  the  motion,  but  the 
looks  of  Mr.  Randolph.  He  will  scarcely,  however,  change 
his  face  to  please  them.  It  is  precisely  such  as  God  Al- 
mighty gave  him. 

Mr.  Hay,  sir,  has  got  into  parliamentary  habits  ;  and 
talks  very  fluently  of  the  previous  motion.  These 
things  are  novel  to  me,  who  am  a  mere  lawyer.  On  this 
motion  I  will  make  but  one  remark.  The  constitution 
has  divided  the  powers  of  the  government  among  these 
great  departments:  the  legislative,  executive,  and  judi- 
ciary. These  must  be  kept  separate  and  distinct,  not 
only  in  their  duties,  but  in  their  practice.  The  legisla- 
ture act  upon  expediency,  the  judiciary  act  upon  right. 
The  gentleman,  however,  seems  to  think  himself  sud- 
denly transported  to  the  legislative  hall ;  and  no  doubt, 
would  soon  think  it  very  convenient  to  hang  Mr.  Burr. 
He  tramples  all  our  judiciary  forms  under  foot  ;  if  we 


MOTION    FOR    AN    ATTACHMENT.      249 

make  a  motion  before  the  court,  he  soon  trips  up  the 
heels  of  ours  with  his  previous  motion  ;  but  he  has  no 
right  to  do  so.  And  where  is  his  doctrine  to  end  ?  We 
certainly  have  the  same  rights  which  they  have  ;  and  as 
they  have  moved  the  previous  question,  we  move,  sir, 
that  the  court  shall  not  "hear  their  motion.  This  will 
be  ringing  the  charges  without  end  ;  it  is  a  new  inven- 
tion. It  is  better  that  we  send  these  parliamentary  dis- 
tinctions to  the  other  side  of  the  house,  where  they  ought 
forever  to  remain. 

Mr.  Hay  says  that  this  motion  ought  not  to  be  made 
pendente  lite,  and  that  he  ought  to  be  tried  like  other 
people.  Sir,  Mr.  Burr  ought  to  have  the  same  justice 
meted  out  to  him,  which  is  meted  to  every  other  person. 
He  stands  here  on  the  same  footing,  and  with  the  same 
privileges,  as  any  other  citizen  in  his  situation.  I  assert 
that  any  other  man  would  have  a  right  to  this  attach- 
ment ;  and  that  the  motion  ought  to  be  made  pendente 
lite,  if  at  all.  "  Why  (they  loudly  ask  us)  does  he  make 
it  at  this  time  ?  "  "  Why  does  he  not  postpone  it  till 
after  the  prosecution?"  Why,  sir,  when  Mr.  Burr  is  dis- 
charged (and  I  hope  he  will  shortly  be  so),  he  may  not 
be  disposed  to  trouble  the  court  any  further.  How  long 
this  prosecution  will  last,  no  one  knows  :  perhaps  a  week  ; 
perhaps  longer.  It  is  already  gone  so  far  beyond  our 
expectations,  that  it  is  impossible  to  conjecture.  Now 
sir,  may  not  similar  contempts  occur  ?  Is  it  not  necessary 
to  restrain  certain  people,  by  convincing  them,  that  such 
practices  make  them  liable  to  punishment  ?  But  they 
say,  that  these  charges  are  no  foundation  for  a  motion. 
Our  object  is  not  to  inflame  the  public  mind  ;  facts  will 
suffice.  And  what  has  General  Wilkinson  done  ?  He  has 
brought  witnesses  with  him  from  New  Orleans,  by  mili- 
tary force.  He  has  taken  their  depositions  entirely  ex 
parte  at  theNpoint  of  the  bayonet  ;  yet  there  is  no  horror 
in  all  this,  for  the  purpose  of  keeping  their  testimony 
straight !  I  lay  down  this  broad  position  :  that  the  man 
who  goes  about  collecting  affidavits  upon  affidavits,  cor- 
rupts the  fountains  of  justice.  We  have  already  seen  a 
volume  of  such  at  this  bar.  [Mr.  Hay.  Did  they  come 
from  New  Orleans  ?]  I  did  not  say  from  New  Orleans. 
I  might  have  particularly  mentioned  Mr.  Jackson,  who. 


250  TRIAL     OF    AARON    BURR. 

comes  here  with  the  depositions  of  witnesses,  who  are 
thus  bound  hand  and  foot,  thus  tongue-tied  because 
their  depositions  had  been  taken.  Sir,  I  saw  them  in  this 
very  court  examining  witnesses  with  affidavits  in  their 
hands,  and  comparing  the  one  with  the  other :  deposi- 
tions taken  not  by  commission",  but  ex parte.  When  an 
interested  agent  thus  goes  about  collecting  depositions, 
and  with  ignorant  men,  shaping  them  just  as  he  pleases, 
I  aver  that  they  are  contrary  to  law,  and  to  the  spirit 
and  genius  of  our  government ;  that  they  are  a  contempt 
upon  this  court,  if  done  during  the  prosecution,  by  in- 
terfering with  the  purposes  of  justice.  Such  men  are 
liable  to  an  attachment,  from  the  very  moment  when  the 
government  took  possession  of  Mr.  Burr's  person  ;  not 
from  the  moment  of  his  first  arrest,  but  from  the  time 
when  they  ordered  Perkins  to  conduct  his  prisoner  from 
Fredericksburg  to  Richmond. 

The  gentleman  has  enummerated  three  species  of  con- 
tempt :  but  the  enumeration  is  certainly  imperfect. 
Does  the  gentleman  know  nothing  of  prosecutions  for 
libels  on  the  court  or  on  the  parties?  The  publication 
of  a  handbill  against  a  party  is  a  contempt  of  the  court, 
because  the  administration  of  justice  is  affected  by  it. 
All  acts  to  defeat  justice,  or  to  influence  the  public  mind 
pendente  lite,  are  for  the  same  reason  contempts  of  the 
court.  Such  contempts  have  been  punished  in  Europe 
and  in  this  country.  I  repeat  it,  that  whoever  does  any 
act  to  influence  the  administration  of  justice  is  liable  to 
an  attachment.  But  they  say  our  object  is  to  affect 
General  Wilkinson.  He  is  a  competent  witness,  however 
arbitrary  he  maybe.  His  credibility  will  be  judged  of 
from  all  the  circumstances.  Does  General  Wilkinson 
shrink  from  the  investigation  ? 

Mr.  Hay. — You  know  he  does  not. 

Mr.  WickJiam. — The  attorney  for  the  United  States 
charges  us  with  interrupting  the  prosecution.  Our 
motion  is  founded  on  right,  and  we  will  prove  its  truth. 
He  need  not  attend  to  it.  If  the  court  have  not  the  right 
to  grant  our  motion,  we  shall  lament  it.  We  hope  the 
court  will  hear  our  motion  to-morrow. 

The  Chief  Justice  said  that  the  pendency  of  the  prose- 
cution was  no  objection  to  hear  the  motion  but  it  was 


OPINION    IN     WILLIE'S    CASE.  251 

another  question,  whether  there  were  any  grounds  for  it 
or  not  ;  and  that  the  court  would  not  say  that  a  motion 
relating  to  the  justice  of  the  case  ought  not  to  be  heard. 

Mr.  Hay  wished  it  postponed  to  a  later  day ;  and 
insisted  that,  admitting  the  charges  were  true,  they  could 
have  no  legal  effect  on  the  prosecution.  He  said  he 
would  repeat  his  motion  to  postpone  the  inquiry. 

Mr.  Martin  and  Mr.  Botts  denied  it  ;  and  after  some 
desultory  conversation,  the  court  adjourned. 

THURSDAY,  June  i8th,  1807. 

As  soon  as  the  court  met,  the  Chief  Justice  delivered 
the  following  opinion  in  the  case  of  Willie  : 

In  point  of  law,  the  question  now  before  the  court  re 
lates  to  the  witness  himself.  The  attorney  for  the  United 
States  offers  a  paper  in  cypher,  which  he  supposes  to  have 
proceeded  from  a  person  against  whom  he  has  preferred 
an  indictment  for  high  treason,  and  another  for  a  mis- 
demeanor, both  of  which  are  now  before  the  grand  jury ; 
and  produces  a  person  said  to  be  the  secretary  or  clerk 
of  the  accused,  who  is  supposed  either  to  have  copied 
this  paper  by  his  direction,  or  to  be  able  to  prove  in 
some  other  manner  that  it  has  proceeded  from  his  author- 
ity. To  a  question,  demanding  whether  he  understands 
this  paper,  the  witness  has  declined  giving  an  answer, 
saying,  that  the  answer  might  criminate  himself;  and  it 
is  referred  to  the  court  to  decide,  whether  the  excuse  he 
has  offered  be  sufficient  to  prevent  his  answering  the 
question  which  has  been  propounded  to  him. 

It  is  a  settled  maxim  of  law,  that  no  man  is  bound  to 
criminate  himself.  This  maxim  forms  one  exception  to 
the  general  rule,  which  declares  that  every  person  is 
compellable  to  bear  testimony  in  a  court  of  justice. 
For  the  witness,  who  considers  himself  as  being  within 
this  exception,  it  is  alleged,  that  he  is,  and  from  the 
nature  of  things  must  be,  the  sole  judge  of  the  effect 
of  his  answer:  That  he  is  consequently  at  liberty  to 
refuse  to  answer  any  question,  if  he  will  say  upon  his 
oath,  that  his  answer  to  that  question  might  criminate 
himself. 

When  this  opinion  was  first  suggested,  the  court  con- 


252  TRIAL  OF  AARON  BURR. 

ceived  the  principle  laid  down  at  the  bar  to  be  too 
broad,  and  therefore  required  that  authorities  in  support 
of  it  might  be  adduced.  Authorities  have  been  ad- 
duced, and  have  been  considered.  In  all  of  them,  the 
court  could  perceive,  that  an  answer  to  the  question 
propounded  might  criminate  the  witness,  and  he  was  in- 
formed that  he  was  at  liberty  to  refuse  an  answer. 
These  cases  do  not  appear  to  the  court  to  support  the 
principle  laid  down  by  the  counsel  for  the  witness,  in 
the  full  latitude  in  which  they  have  stated  it.  There  is 
no  distinction  which  takes  from  the  court  the  right  to 
consider  and  decide  whether  any  direct  answer  to  the 
particular  question  propounded,  could  be  reasonably 
supposed  to  affect  the  witness.  There  may  be  questions, 
no  direct  answer  to  which,  could  in  any  degree  affect 
him  ;  and  there  is  no  case  which  goes  so  far  as  to  say, 
that  he  is  not  bound  to  answer  such  questions.  The 
case  of  Goosely  in  this  court  is,  perhaps,  the  strongest 
that  has  been  adduced.  But  the  general  doctrine  of 
the  judge  in  that  case,  must  have  referred  to  the  cir- 
cumstances, which  showed  that  the  answer  might  crim- 
inate him. 

When  two  principles  come  in  conflict  with  each  other, 
the  court  must  give  them  both  a  reasonable  construction, 
so  as  to  preserve  them  both  to  a  reasonable  extent.  The 
principle  which  entitles  the  United  States  to  the  testi- 
mony of  every  citizen,  and  the  principle  by  which  every 
witness  is  privileged  not  to  accuse  himself,  can  neither. 
of  them  be  entirely  disregarded.  They  are  believed 
both  to  be  preserved  to  a  reasonable  extent,  and  accor- 
ding to  the  true  intention  of  the  rule,  and  of  the  ex- 
ception to  that  rule,  by  observing  that  course,  which, 
it  is  conceived,  courts  have  generally  observed.  It  is 
this : 

When  a  question  is  propounded,  it  belongs  to  the 
court  to  consider  and  to  decide  whether  any  direct  an- 
s\ver  to  it  can  implicate  the  witness.  If  this  be  decided 
in  the  negative,  then  he  may  answer  it  without  violating 
the  privilege  which  is  secured  to  him  by  law.  If  a 
direct  answer  to  it  may  criminate  himself,  then  he  must 
be  the  sole  judge  what  his  answer  would  be.  The  court 
can  not  participate  with  him  in  this  judgment,  because 


OPINION  ON  WILLIE'S  CASE.  253 

they  can  not  decide  on  the  effect  of  his  answer  without 
knowing  what  it  would  be ;  and  a  disclosure  of  that  fact 
to  the  judges  would  strip  him  of  the  privilege  which  the 
law  allows,  and  which  he  claims.  It  follows  necessarily, 
then,  from  this  statement  of  things,  that  if  the  question 
be  of  such  a  description,  that  an  answer  to  it  may  or 
may  not  criminate  the  witness,  according  to  the  purport 
of  that  answer,  it  must  rest  with  himself,  who  alone  can 
tell  what  it  would  be,  to  answer  the  question  or  not.  If, 
in  such  a  case,  he  say,  upon  his  oath,  that  his  answer 
would  criminate  himself,  the  court  can  demand  no  other 
testimony  of  the  fact.  If  the  declaration  be  untrue,  it 
is  in  conscience  and  in  law  as  much  a  perjury  as  if  he 
had  declared  any  other  untruth  upon  his  oath  ;  as  it  is 
one  of  those  cases  in  which  the  rule  of  law  must  be 
abandoned,  or  the  oath  of  the  witness  be  received. 

The  counsel  for  the  United  States  have  also  laid  down 
this  rule  according  to  their  understanding  of  it ;  but 
they  appear  to  the  court  to  have  made  it  as  much  too 
narrow,  as  the  counsel  for  the  witness  have  made  it  too 
broad.  According  to  their  statement,  a  witness  can 
never  refuse  to  answer  any  question,  unless  that  answer, 
unconnected  with  other  testimony,  would  be  sufficient 
to  convict  him  of  a  crime.  This  would  be  rendering  the 
rule  almost  perfectly  worthless.  Many  links  frequently 
compose  that  chain  of  testimony,  which  is  necessary  to 
convict  any  individual  of  a  crime.  It  appears  to  the 
court  to  be  the  true  sense  of  the  rule,  that  no  witness  is 
compellable  to  furnish  any  one  of  them  against  himself. 
It  is  certainly  not  only  a  possible,  but  a  probable  case, 
that  a  witness,  by  disclosing  a  single  fact  may  complete 
the  testimony  against  himself;  and  to  every  effectual 
purpose  accuse  himself  as  entirely  as  he  would  by  stat- 
ing every  circumstance  which  would  be  required  for  his 
conviction.  That  fact  of  itself  might  be  unavailing,  but 
all  other  facts  without  it  would  be  insufficient.  While 
that  remains  concealed  within  his  own  bosom,  he  is  safe  ; 
but  draw  it  from  thence,  and  he  is  exposed  to  a  prose- 
cution. The  rule  which  declares  that  no  man  is  compel- 
lable to  accuse  himself,  would  most  obviously  be  in- 
fringed, by  compelling  a  witness  to  disclose  a  fact  of  this 
description. 


254  TRIAL  OF  AARON  BURR. 

What  testimony  may  be  possessed,  or  is  attainable 
against  any  individual,  the  court  can  never  know.  It 
would  seem,  then,  that  the  court  ought  never  to  compel 
a  witness  to  give  an  answer,  which  discloses  a  fact  that 
would  form  a  necessary  and  essential  part  of  a  crime 
which  is  punishable  by  the  laws. 

To  apply  this  reasoning  to  the  particular  case  under 
consideration  :  To  know  and  conceal  the  treason  of  an- 
other is  misprision  of  treason,  and  is  punishable  by  law. 
No  witness,  therefore,  is  compellable  by  law,  to  disclose  a 
fact  which  would  form  a  necessary  and  essential  part  of 
this  crime.  If  the  letter  in  question  contain  evidence  of 
treason,  which  is  a  fact  not  dependent  on  the  testimony 
of  the  witness  before  the  court,  and  therefore  may  be 
proved  without  the  aid  of  his  testimony;  and  if  the 
witness  were  acquainted  with  that  treason  when  the  letter 
was  written,  he  may  probably  be  guilty  of  misprision  of 
treason  ;  and  therefore  the  court  ought  not  to  compel 
him  to  answer  any  question,  the  answer  to  which  might 
disclose  his  former  knowledge  of  the  contents  of  that  let- 
ter. 

But  if  the  letter  should  relate  to  the  misdemeanor  and 
not  to  the  treason,  the  court  is  not  apprised  that  a  knowl- 
edge and  concealment  of  the  misdemeanor  would  expose 
the  witness  to  any  prosecution  whatever.  On  this  ac- 
count, the  court  was  at  first  disposed  to  inquire,  whether 
the  letter  could  be  decyphered  ;  in  order  to  determin-e 
from  its  contents  how  far  the  witness  could  be  examined 
respecting  it.  The  court  was  inclined  to  this  course  from 
considering  the  question  as  one,  which  might  require  a 
disclosure  of  the  knowledge  which  the  witness  might 
have  had  of  the  contents  of  this  letter  when  it  was  put 
in  cypher,  or  when  it  was  copied  by  himself;  if,  indeed, 
such  were  the  fact.  But  on  hearing  the  question  more 
particularly  and  precisely  stated,  and  finding  that  it  refers 
only  to  the  present  knowledge  of  the  cypher,  it  appears 
to  the  court  that  the  question  may  be  answered  without 
implicating  the  witness  ;  because  his  present  knowledge 
would  not  it  is  believed,  in  a  criminal  prosecution,  justify 
the  inference,  that  his  knowledge  was  acquired  previous 
to  this  trial,  or  afford  the  means  of  proving  that 
fact. 


EXAMINATION  OF  WILLIE.  255 

The  court  is  therefore  of  opinion,  that  the  witness  may 
answer  the  question  now  propounded. 

The  gentlemen  of  the  bar  will  understand  the  rule  laid 
down  by  the  court  to  be  this  : 

It  is  the  province  of  the  court  to  judge,  whether  any 
direct  answer  to  the  question,  which  may  be  proposed, 
will  furnish  evidence  against  the  witness. 

If  such  answer  may  disclose  a  fact,  which  forms  a  neces- 
sary and  essential  link  in  the  chain  of  testimony,  which 
would  be  sufficient  to  convict  him  of  any  crime,  he  is  not 
bound  to  answer  it  »o  as  to  furnish  matter  for  that  con- 
viction. 

In  such  a  case,  the  witness  must  himself  judge  what 
his  answer  will  be;  and  if  he  say  on  oath,  that  he  can 
not  answer  without  accusing  himself,  he  can  not  be  com- 
pelled to  answer. 

Mr.  Williams  (counsel  for  Mr.  Willie)  stated,  that  he 
had  misunderstood  him  the  other  day  in  court,  and 
in  a  subsequent  conversation  had  obtained  more  ac- 
curate information.  He  does  understand  a  part  of  that 
letter. 

Mr.  Hay  requested  that  Mr.  Willie  should  be  called 
into  court. 

When  he  appeared,  Mr.  Hay  interrogated  him.  Do 
you  understand  the  contents  of  that  letter  ?  Answer,  No. 
Mr.  Willie  afterwards  said,  that  he  understood  the  part  of 
the  letter  which  is  written  in  Dutch. 

Mr.  Hay. — Was  this  letter  written  by  the  hand  or  the 
direction  of  Aaron  Burr. 

Mr.  Wickham  objected  to  the  question. 

Chief  Justice. — The  witness  and  his  counsel  will  con- 
sult. 

Mr.  Hay  repeated  the  question.  Mr.  Willie:  Yes. 
Mr.  Hay:  Which?  By  his  hand,  or  his  direction?  Mr. 
Willie:  By  his  direction.  It  was  copied  from  a  paper 
written  by  himself. 

Mr.  Hay. — I  wish  this  paper  to  be  carried  to  the  grand 
jury.  I  presume  there  can  be  no  objection. 

Mr.  Botts. — No  objection  !  We  call  upon  you  to  show 
the  materiality  of  that  letter. 

Mr.  Hay. — I  deny  the  necessity  of  any  such  thing. 
Until  this  letter  be  decyphered,  it  will  be  perfectly  unin- 


256  TRIAL   OF  AARON  BURR. 

telligible  to  me,  and  to  the  grand  jury.  It  is  no  more 
than  a  blank  piece  of  paper. 

Mr.  WickJiam. — I  had  always  understood  before,  that 
the  testimony  which  is  laid  before  the  grand  jury,  must 
not  only  be  legal  in  itself,  but  proved  to  be  material. 

Mr.  Williams  begged  leave  to  interrupt  the  gentleman. 
Mr.  Willie  is  anxious  to  be  particularly  understood.  He 
says,  that  this  cyphered  letter  was  first  written  by  Mr. 
Burr,  and  afterwards  copied.  But  it  is  the  cypher  only, 
which  has  been  copied  from  Mr.  Burr's  original. 

Mr,  Hay. — It  is  quite  sufficient,  sir.  If  Mr.  Burr  wrote 
the  cyphered  part,  he  will  be  considered  the  author  of 
the  whole. 

Mr.  Wickham. — The  gentleman  has  started  a  curious 
proposition  indeed  !  I  had  always  understood  before, 
that  the  whole  included  the  part ;  but  it  seems  now,  that 
the  part  is  to  comprehend  the  whole. 

Mr.  Hay. — The  remark  of  the  gentlemen  may  be  wit, 
sir,  but  he  certainly  knows  that  it  is  not  law. 

Chief  Justice. — Can  you  get  this  letter  decyphered. 

Mr.  Hay. — Is  Erick  Bollman  in  court?  I  wish  him  to 
be  called.  These  gentlemen  demand  proof  of  the  ma- 
teriality of  this  letter.  Is  this  a  question  about  which 
the  court  will  interfere?  Can  the  court  think  it  proper 
to  require  the  materiality  of  this  cyphered  letter  to  be 
proved  before  it  is  sent  up  to  the  grand  jury  ?  We  may 
turn  the  very  favorite  argument  of  gentlemen  against 
themselves.  This  letter  is  either  material  to  the  pres- 
ent case,  or  it  is  not.  If  it  be  material,  how  can  they 
object  to  its  production  ?  And  if  it  be  perfectly  imma- 
terial, what  injurious  consequences  can  result  from  its 
being  sent  up  to  the  grand  jury? 

Mr.  Botts. — I  never  supposed  that  it  could  be  a  ques- 
tion, whether  an  immaterial  paper  could  be  exhibited 
before  the  grand  jury  ?  This  question  has  been  fre- 
quently decided  in  the  negative.  On  the  trial  of  Smith 
and  Ogden,  Judge  Patterson  solemnly  decided  against 
such  a  proceeding.  Were  papers  permitted  to  be  laid 
before  a  grand  or  a  petit  jury,  before  their  materiality 
was  proved,  it  would  produce  an  endless  confusion  and 
waste  of  time.  In  Washington's  Reports  there  is  a  case 
where  the  court  of  appeals  inferred  error,  because  an  in 


THE  CYPHERED   LETTER.  257 

ferior  court  had  permitted  the  introduction  of  an  imma- 
terial paper ;  and  this,  too,  was  in  a  civil  case.  Even  if 
the  grand  jury  have  called  for  it,  it  ought  not  to  be  sent 
to  them,  before  its  materiality  has  been  shown  to  the 
satisfaction  of  the  court. 

Mr.  Mac  Rae. — Would  it  not  be  as  proper,  sir,  to  com- 
pel every  witness,  before  he  is  sent  up  to  the  grand  jury, 
to  state  the  substance  of  his  testimony,  as  it  is  to  require 
proof  of  the  materiality  of  a  paper  ?  This  inquiry,  how- 
ever, is  never  made.  The  only  qualification  which  is  re- 
quired about  a  witness  is,  that  he  should  be  a  legal, 
competent  witness  ;  not  that  he  should  be  sworn  to  be  a 
material  one.  The  very  same  principle  is  applicable  to 
this  paper.  After  it  is  proved  to  be  revelant  testimony, 
is  it  necessary  that  an  inquiry  should  be  made  into  its 
materiality  ?  In  fact,  how  can  any  such  proof  be  given, 
when  the  letter  itself  is  principally  in  cyphers? 

Mr.  Wickham. — Mr.  Mac  Rae  has  demanded  -author- 
ities ;  I  have  prepared  none  at  present,  sir,  because  I 
could  not  suppose  that  any  were  necessary.  As  to  his 
argument,  that  no  inquiry  is  to  be  made  into  the  materi- 
ality of  a  paper  to  be  sent  to  the  grand  jury,  because 
none  is  made  into  that  of  a  witness,  it  does  not  apply. 
When  a  witne?s  is  sent  up  before  a  grand  jury,  it  is 
presumed  that  his  testimony  is  relevant  to  the  case. 
The  only  question  is,  is  he  a  competent  witness  ?  And 
it  is  only  on  the  ground  of  incompetency,  that  his  testi- 
mony is  not  legal.  If  competent,  he  is  a  legal  witness; 
he  is  sworn,  and  is  forced  to  answer  such  questions  as 
may  be  put  to  him  by  the  grand  jury.  If,  however,  he 
refuse,  they  then  call  upon  the  court  to  interpose  its  jur- 
isdiction ;  and  the  inquiry  will  then  be,  whether  the 
question  be  material  and  proper?  As  to  the  papers, 
they  are  not  to  be  received  at  all,  unless  they  are  shown 
to  be  relevant  to  the  case.  And  where  is  the  limit  to 
this  species  of  proceeding  ?  Suppose,  in  this  search 
after  papers,  all  the  private  letters  of  Mr.  Burr  should  be 
brought  up  ;  all  the  most  secret  actions  of  his  life  should 
be  written  down,  and  brought  hither  to  be  submitted  to 
public  inspection  ?  will  the  court  indulge  them  in  such  a 
wide  inquisition  ? 

Chief  Justice  said  he  had  in  some  measure  anticipated 
17 


258  TRIAL     OF    AARON    BURR. 

this  question,  and  had  reflected  upon  it  ;  his  opinion 
was  this  :  a  paper,  to  go  before  the  grand  or  petit  jury, 
must  be  relevant  to  the  case,  even  if  its  materiality  were 
proved.  Why  send  this  letter  before  the  grand  jury,  if 
it  can  not  be  decyphered  ?  If  it  can  be  decyphered 
before  the  grand  jury,  why  not  before  the  court  ?  Let 
it,  then,  be  decyphered,  and  its  relevancy  may  at  once  be 
established. 

Mr.  Hay. — Is  there  no  difference  between  any  other 
paper  and  a  cyphered  letter  proved  to  have  been  origin- 
ally written  by  Aaron  Burr? 

Chief  Justice. — Still  this  letter  may  not  be  relevant  to 
the  present  case. 

Mr.  Hay  then  directed  Erick  Bollman  to  be  called 
into  court,  that  he  might  be  interrogated  as  to  its  con- 
tents. He  requested  that  the  court  would  indulge  him 
for  a  short  time,  until  he  could  execute  some  important 
business  before  the  court  of  appeals. 

The  court  accordingly  suspended    the  prosecution. 

At  half  past  one  o'clock,  the  court  again  resumed  the 
business  ;  but  neither  Doctor  Bollman  nor  Mr.  Hay  ap- 
peared. 

A  few  minutes  after  the  court  had  resumed  its  busi- 
ness, Mr.  John  Randolph  entered  at  ftie  head  of  the 
grand  jury,  and  addressed  the  court : 

May  it  please  the  court :  One  of  the  witnesses,  under 
examination  before  the  grand  jury,  has  answered  certain 
questions  touching  a  letter  in  cyphers.  The  grand  jury 
understand  that  this  letter  is  in  the  'possession  of  the 
court  or  of  the  counsel  for  the  prosecution.  They  have 
thought  proper  to  appear  before  you,  to  know  whether 
the  letter  referred  to  by  the  witness,  be  in  the  possession 
of  the  court  ? 

Chief  Justice  observed,  that  as  the  letter  was  wanted 
by  the  grand  jury,  a  witness  having  referred  to  it,  that 
was  sufficient  to  establish  its  relevancy,  and  directed  it 
to  be  delivered  to  them. 

Mr.  Mac  Rae  hoped  that  before  the  grand  jury  retired 
they  would  be  informed,  that  a  witness  had  proved  that 
this  letter  was  originally  written  by  Aaron  Burr. 

Mr.  Wickham. — And  I  hope,  they  will  also  be  informed 
that  the  superscription  on  that  letter  has  not  been  proved 


WITNESS    BEFORE     GRAND    JURY.      259 

to  have  been  written  by  Mr.  Burr.  The  witness  did  not 
and  would  not  say,  that  he  knew  the  superscription  to 
have  been  written  by  him. 

FRIDAY,  June  iQth,  1807. 

As  soon  as  the  court  met,  Mr.  Burr  addressed  them. 
He  stated,  that  the  express  he  had  sent  on  to  Wash- 
ington with  the  subpoena  duces  tecum,  had  returned  to 
this  city  on  Wednesday  last,  but  had  received  no  other 
than  a  verbal  reply  from  the  president  of  the  United 
States,  that  the  papers  wanted  would  not  be  sent  by  him ; 
from  which  I  have  inferred,  said  Mr.  Burr,  that  he  intends 
to  send  them  in  some  other  way.  I  did  not  mention  this 
circumstance  yesterday  to  the  court,  under  an  expecta- 
tion that  the  last  night's  mail  might  give  us  further  intel- 
ligence on  the  subject.  I  now  rise  to  give  notice,  that 
unless  I  receive  a  satisfactory  intimation  on  this  subject 
before  the  meeting  of  the  court,  I  shall  to-morrow  move 
the  court  to  enforce  its  process. 

Chief  Justice  handed  down  to  the  bar  a  copy  of  a  letter 
addressed  from  Doctor  Erick'Bollman  to  the  chief  justice. 
It  was  not  publicly  read,  and  for  that  reason  Mr.  Hay 
declared  that  he  should  not  make  any  remarks  upon  it. 

Mr.  Burr's  counsel  called  James  Knox  and  Chandler 
Lindsley  (two  of  the  witnesses  for  the  United  States  , 
whose  affidavits  had  been  drawn  and  were  intended  as 
the  ground  of  the  motion  for  an  attachment  against 
General  Wilkinson. 

Mr.  Hay  interrupted  the  motion,  by  stating  that  he 
himself  had  a  motion  to  make  to  the  court ;  and  that  was 
for  leave  to  send  up  such  written  interrogatories  to  the 
grand  jury  as  he  thought  proper  to  put  to  certain  wit- 
nesses. His  reason  was  that  some  of  these  witnesses  would 
voluntarily  depose  to  as  little  as  possible  ;  that  the  grand 
jury  might  not  always,  know  the  particular  questions  to 
be  proposed  to  them  respectively,  and  to  what  point  to 
shape  their  inquiries  ;  that  he  himself  better  knew  what 
they  would  say  (having  seen  their  depositions),  and  that 
his  interrogatories  might  probably  aid  the  jury  in  their 
investigation. 

Mr.  Martin. — I  shall  object  to  this  motion,  unless  it 


26o  TRIAL  OF  AARON  BURR. 

be  qualified  by  giving  us  the  same  privilege.  We  can  not 
send  up  our  witnesses  to  the  jury,  but  we  may  send  up 
our  interrogatories.  We  will  assent  to  the  motion  of  the 
attorney  for  the  United  States  upon  the  condition  that 
he  will  assent  to  ours. 

Some  conversation  ensued  upon  the  motion  tor  an 
attachment;  when  the  Chief  Justice  asked  if  the  papers 
could  not  be  put  into  his  hands,  and  the  argument  take 
place  to-morrow  ;  that  he  wished  to  consider  the  ques- 
tion before  it  was  discussed. 

Mr  Hay  approved  of  this  course.      It  would    prevent 
the  public  exhibition  of  these  affidavits,  which  were  drawn 
up  for  the  sole  purpose  of  defaming  General  Wilkinson, 
and  thereby  making  an  improper  impression  on  the  pub- 
lic mind  with  respect  to  the   trial  of  Aaron   Burr  ;  and 
had  been  obtained  from  persons  who  were  willing  to  say 
anything  to  answer  the  purposes  of  the  accused,  but  very 
'  reluctant  to  give  any  evidence  on  behalf  of  the  United 
States.      That   these  were  voluntary  affidavits  of  these 
reluctant  witnesses,  whose  connection  with  the  accused 
would  one  day  be  known.     If  the  place  where,  and  per- 
sons by  whom  they  were  dictated,  were  considered,  the 
court  would  see  that  the  object  was  to  prejudice  the  sur- 
rounding multitude  against  General  Wilkinson  ;  that  they 
had   such  deadly  hatred  against  him,  that  if  they  could 
but  sink  him,  they  were  regardless  of  sinking  themselves, 
but  that  the  integrity  and  patriotism  of  that  man  would 
soon  be  known  to  all  America  ;  that  he  had  merely  glanced 
his  eye  at  a  single    expression  in   one  of  these   papers 
which  was  as  impudent  a  falsehood  as  ever  malignity  had 
uttered.     The  court  might   compare  these  papers  with 
the    law,  and  determine  whether  they  would  justify  an 
attachment  or  a  rule  to  show  cause,  and  that   the  court, 
if  they  entertained  any  doubts,  might  then  direct  an  ar- 
gument ;  but  then  he  hoped  that  the  witnesses  would  be 

o 

examined  in  court. 

Mr  Randolph  spoke  at  considerable  length, 
been  disposed  to  postpone  this  subject  till  to-morrow  ; 
but  from  the  moment  when  he  heard  Mr.  Hays  antici- 
pating speech  he  was  opposed  to  all  delay.  Had  pro- 
duced documents  to  support  his  motion  ;  and  yet,  accord- 
ing to  Mr.  Hay,  it  was  dictated  by  nothing  more  than 


MOTION    FOR    AN    ATTACHMENT.       261 

the  policy  to  defame  General  Wilkinson.  Mr.  Hay  had 
wandered  into  the  very  error  which  he  had  charged  to 
us.  He  had  called  upon  the  court  to  defend  the  char- 
acter of  General  Wilkinson,  the  defender  of  his  country, 
who  is  to  come  through  the  fiery  furnace  purer  than 
gold  ;  and  yet  he  has  himself  charged  the  witnesses  now 
before  the  court  with  malignity  and  rancor !  That 
General  Wilkinson  was  subject  to  the  legal  consequences 
of  his  own  illegal  acts,  and  ought  to  be  punished  ;  that 
the  affidavits  were  to  the  point,  and  ought  to  be  read  ; 
they  would  show  that  he  practiced  a  system  of  tyranny 
from  the  commencement. 

Mr.  Botts. — Why  do  gentlemen  object  to  the  present 
motion  being  heard,  when  they  have  so  often  insisted 
upon  their  own  right  to  be  heard  by  the  court  ?  Why 
do  they  reproach  us  with  shrinking  from  the  evidence, 
when  they  are  attempting  to  screen  their  favorite  wit- 
ness, General  Wilkinson,  from  a  fair  investigation  of  evi- 
dence? The  witnesses  ought  to  have  been  under  the 
protection  of  the  court.  Their  countenances  do  not 
bespeak  devils  ;  they  are  like  other  men  ;  but  they  are 
branded  as  villains.  Does  Mr.  Hay  desire  that  the  char- 
acters of  these  men  should  be  immolated  to  this  savior 
of  his  country  ?  that  their  fair  reputation  should  be 
sacrificed  to  save  his  ?  The  constitution  has  recognized 
the  equality  of  man.  Though  those  gentlemen  may  not 
be  decked  out  in  the  tinsel  ornaments  of  military  grandeur, 
their  -rights  as  citizens,  and  the  respect  due  to  their 
characters,  are  the  same  as  those  of  any  other  men.  If 
Wilkinson  be  able  to  go  through  the  fiery  ordeal,  put 
him  on  his  trial.  If  his  private  declarations  to  Mr.  Hay 
are  to  be  set  against  their  oaths,  let  it  be  tried.  I  desire 
for  them  to  be  put  on  trial  as  well  as  General  Wilkinson. 
Put  them  in  one  scale,  and  him  in  the  other.  We  hope 
our  motion  will  be  heard. 

Mr.  Mac  Rae,  at  some  length,  expatiated  upon  the  im- 
propriety of  animadverting  at  this  time  upon  the  char- 
acter of  General  Wilkinson.  The  court  had  already 
said,  that  no  step  should  be  taken  which  would  affect 
the  justice  of  the  case  ;  and  it  was  therefore  much  bet- 
ter for  the  court  to  pursue  the  suggestion  which  it  had 
out;  to  examine  the  papers  in  private,  and  see 


262  TRIAL  OF  AARON  BURR. 

whether  the  affidavits  were  relevant  to  the  point,  than 
to  prejudice  the  justice  of  the  case  by  a  public  exhibition 
of  these  affidavits  ;  that  he  was  prepared  to  vindicate  his 
character  ;  but  this  was  not  the  time,  and  he  wished  the 
cause  to  be  conducted  regularly  ;  that  the  motion  ought 
to  be  reduced  to  writing,  and  the  court  would  then  de- 
cide on  it  and  the  affidavits  together. 

Mr.  Wickham  protested  against  the  secret  tribunal  to 
which  gentlemen  wished  to  resort,  for  stifling  inquiry  and 
murdering  character.  That  gentlemen  complained  of 
the  waste  of  time,  but  they  themselves  wasted  the  most 
by  previous  questions.  The  gentlemen  who  have  made 
these  affidavits  are  upon  their  oaths.  Is  it  right,  said 
he,  for  the  counsel  to  charge  them  with  perjury,  and  yet 
not  give  them  an  opportunity  of  vindicating  their  vera- 
city ?  If  an  expression  escape  our  lips,  we  are  charged 
with  forstalling  the  public  opinion.  In  every  instance 
they  wander  into  bold  assertions  and  violent  invec- 
tives. Is  Wilkinson's  character  too  sacred  for  public 
investigation  ?  We  have  a  right  to  be  heard,  and  in- 
sist on  it. 

Mr.  Hay  denied  having  made  any  such  assertion.  He 
had  merely  alluded  to  one  expression  in  their  affidavits, 
which  was  too  monstrous  to  be  believed.  '  But  why 
all  this  feeling  on  the  present  occasion,  when  gentle- 
men have  so  often  charged  General  Wilkinson  with 
perjury. 

Mr.  Martin. — When  did  we  charge  him  with  any 
other  perjury,  than  that  of  violating  the  constitution 
which  he  had  sworn  to  support  ?  Is  not  this  notorious  ? 
Are  not  Swartwout  and  others  here  to  prove  it  ?  We 
did  not  say  that  General  Wilkinson  was  ready  to  per- 
jure himself;  but  merely  that  he  had  everything  now  at 
stake,  and  would  go  almost  all  lengths  to  hang  Mr.  Burr. 

Mr.  Wickham  insisted  on  their  right  to  go  on  with 
their  motion  ;  that  the  court  only  wished  to  get  the 
affidavits  to  understand  their  arguments  better;  but  even 
the  court  could  not  deprive  them  of  the  right  to  be 
heard  as  advocates. 

After  some  other  discussion,  Mr.  Burr  agreed  to  place 
the  papers  in  the  hands  of  the  court,  and  to  waive  his  mo- 
tion till  to-morrow. 


MOTION    FOR    AN    ATTACHMENT.       263 

Chief  Justice. — Reduce  the  motion  to  writing.  [This 
was  done.] 

Mr.  Burr. — It  is  only  upon  the  affidavits  of  Knox 
and  Lindsley,  that  we  move  for  a  rule  to  show  cause 
why  an  attachment  should  not  issue  against  General 
Wilkinson. 

Mr.  Martin  hoped,  as  Mr.  Burr  had  postponed  his 
motion,  the  attorneys  for  the  United  States  would  post- 
pone theirs. 

Mr.  Hay  refused,  upon  the  ground,  that  the  witnesses 
were  now  before  the  grand  jury,  and  that  his  interroga- 
tories would  be  necessary  to  direct  their  inquiries  ;  that 
he  knew  the  testimony  better  than  they  did,  and  in 
saving  time,  he  wished  to  promote  their  convenience  and 
to  put  them  on  the  track  to  get  the  whole  truth. 

Mr.  Burr. — I  instructed  my  counsel  to  consent  to 
this  motion  upon  the  condition,  that  I  should  also  be 
permitted  to  send  counter-interrogatories  ;  and  the  way  to 
get  the  whole  truth  is  to  send  interrogatories  on  both 
sides. 

Mr.  Hay  did  not  feel  himself  at  liberty  to  acquiesce  in 
such  a  proposition.  He  would  rather  trust  to  the  dis- 
tinguished intelligence  of  the  grand  jury. 

Mr.  Martin  said,  that  in  his  practice  of  nearly  thirty 
years,  he  had  never  known  interrogatories  to  be  sent  to 
a  grand  jury ;  that  such  a  practice  had  never  been 
known  in  the  whole  history  of  jurisprudence. 

Chief  Justice  said  that  the  court  was  unwilling  to  de- 
clare its  opinion  before  it  heard  argument  on  that  point  ; 
that  the  practice  was  uncommon  in  America,  because  in- 
dictments usually  suggest  enough  to  a  grand  jury;  that 
there  was  no  objection,  in  principle,  to  interrogatories, 
but  that  the  witnesses  ought  to  be  fully  examined  ;  that 
witnesses  were  only  on  one  side,  arid,  therefore,  they 
should  relate  all  they  knew  on  both  sides. 

Mr.  Wirt. — Though  the  practice  is  unknown  in  Amer- 
ica, yet  in  Shaftesbury's  trial,  questions  were  put  by 
the  attorney-general,  the  court,  and  the  grand  jury; 
but  the  intelligence  of  this  grand  jury  will  save  us  this 
trouble. 

Mr.  Botts. — I  wish  you  had  found  <?ut  this  before. 

Mr.  Wirt. — It  is  time  enough. 


264  TRIAL     OF    AARON    BURR. 

Mr.  Randolph. — The  case  cited  by  Mr.  Wirt  shows 
that  interrogatories  on  one  side  only  are  not  admissible. 
The  court  was  counsel  for  the  prisoner. 

Chief  J-ustice. — I  do  not  recollect  whether  at  that 
time  a  prisoner  were  allowed  counsel  or  not. 

Mr.  Hay. — If  the  court  allow  interrogatories  by  both 
sides  to  be  sent  to  the  grand  jury,  I  am  not  willing  to 
send  any.  I  never  heard  of  such  a  case. 

Chief  Justice. — Nor  hath  the  court  ;  but  as  the  grand 
jury  are  only  to  examine  witnesses  on  behalf  of  the 
prosecution,  if  they  are  to  be  aided  by  interrogatories, 
the  principle  of  equal  justice  requires,  that  the  witnesses 
should  disclose  all  they  know,  on  one  side  as  well  as  on 
the  other,  and  that  the  interrogatories  should  be  sent  by 
both  sides. 

Mr.  Burr  stated  that  he  recollected  no  instance  of  in- 
terrogatories sent  to  a  grand  >ury,  except  in  Kentucky, 
in  the  prosecution  against  himself.  That  Mr.  Davies, 
the  attorney  for  the  United  States,  had  drawn  up  some 
interrogatories,  which  were  shown  to  him,  and  with  some 
slight  alterations  suggested  by  himself,  were  sent  to  the 
grand  jury. 

Here  some  conversation  ensued  relative  to  the  form 
of  the  motion  for  an  attachment  against  General  Wil- 
kinson. The  counsel  for  the  United  States  insisted 
upon  a  specification  of  the  conduct,  for  which  it  was  to 
issue;  that  if  generally  expressed  as  a  "contempt  of  the 
court,"  nothing  but  the  spirit  of  divination  could  enable 
him  to  discover  the  specific  offense  charged  against 
him,  nor  to  prepare  for  his  defense ;  that  the  precise 
circumstances  which  constituted  the  offense  ought  to  be 
particularized. 

Mr.  Burr  and  his  counsel  said  that  the  specification  was 
to  be  found  in  the  two  affidavits,  and  that  it  was  from 
delicacy  to  gentlemen,  he  had  not  attempted  to  make 
these  affidavits  matter  of  record,  by  introducing  them 
on  the  face  of  the  motion.  The  motion  reduced  to 
writing,  stated  the  offense  to  be  "  for  a  contempt  in 
obstructing  the  administration  of  the  justice  of  this 
court."  The  court  then  adjourned  till  to-morrow,  eleven 
o'clock. 


LETTER     FROM     THE    PRESIDENT.       265 
SATURDAY,  June  2oth,  1807. 

The  court  met  according  to  adjournment.  Present, 
the  same  judges  as  yesterday. 

Mr.  Randolph  rose  to  proceed  with  his  motion, 
when  he  was  interrupted  by  Mr.  Hay,  who  spoke  to  this 
effect  : 

I  have  a  communication  to  make  to  the  court,  and  to 
the  counsel  of  the  accused.  The  court  will  recollect  the 
answer  which  I  received  from  the  president,  to  my  letter 
respecting  certain  papers.  He  stated  in  that  letter,  that 
General  Wilkinson's  letter  of  the  2ist  October  had  been 
delivered  to  Mr.  Rodney,  the  attorney-general,  from 
whom  he  would  endeavor  to  obtain  it.  By  the  last  mail 
I  have  received  this  letter  from  the  president  on  the 
same  subject : 

WASHINGTON,  June  ifth,  1807. 
SIR, 

In  answering  your  letter  of  the  Qth,  which  desired  a 
communication  of  one  to  me  from  General  Wilkinson, 
specified  by  its  date,  I  informed  you  in  mine  of  the  I2th, 
that  I  had  delivered  it,  with  all  other  papers  respecting 
the  charges  against  Aaron  Burr,  to  the  attorney-general, 
when  he  went  to  Richmond  ;  that  I  had  supposed  he 
had  left  them  in  your  possession,  but  would  immediately 
write  to  him,  if  he  had  not,  to  forward  that  particular 
letter  without  delay.  I  wrote  to  him  accordingly  on  the 
same  day,  but  having  no  answer,  I  know  not  whether  he 
has  forwarded  the  letter.  I  stated  in  the  same  letter, 
that  I  had  desired  the  secretary  at  war  to  examine  his 
office,  in  order  to  comply  with  your  further  request  to 
furnish  copies  of  the  orders  which  had  been  given  re- 
specting Aaron  Burr  and  his  property;  and,  in  a  subse- 
quent letter  of  the  same  day,  I  forwarded  to  you  copies 
of  two  letters  from  the  secretary  at  war,  which  appeared 
to  be  within  the  description  expressed  in  your  letter. 
The  order  from  the  secretary  of  the  navy,  you  said  you 
were  in  possession  of.  The  receipt  of  these  papers  has, 
I  presume,  so  far  anticipated,  and  others  this  day  for- 
warded, will  have  substantially  fulfilled  the  object  of  a 
subpcena  from  the  district  court  of  Richmond,  requir- 
ing that  those  officers  and  myself  should  attend  the 


266  TRIAL     OF    AARON    BURR. 

court  in  Richmond,  with  the  letter  of  General  Wilkin- 
son, the  answer  to  that  letter,  and  the  orders  of  the 
department  of  war  and  the  navy  therein  generally 
described.  No  answer  to  General  Wilkinson's  letter, 
other  than  a  mere  acknowledgment  of  its  receipt  in  a 
.letter  written  for  a  different  purpose,  was  ever  written 
by  myself  or  any  other.  To  these  communications  of 
papers,  I  will  add,  that  if  the  defendant  suppose  there 
are  any  facts  within  the  knowledge  of  the  heads  of  de- 
partments, or  of  myself,  which  can  be  useful  for  his 
defense,  from  a  desire  of  doing  anything  our  situation 
will  permit  in  furtherance  of  justice,  we  shall  be  ready 
to  give  him  the  benefit  of  it,  by  way  of  deposition 
through  any  persons  whom  the  court  shall  authorize  to 
take  our  testimony  at  this  place.  I  know  indeed  that 
this  can  not  be  done  but  by  consent  of  parties,  and  I 
therefore  authorize  you  to  give  consent  on  the  part  of 
the  United  States.  Mr.  Burr's  consent  will  be  given,  of 
course,  if  he  suppose  the  testimony  useful. 

As  to  our  personal  attendance  at  Richmond,  I  am  per- 
suaded the  court  is  sensible,  that  paramount  duties  to 
the  nation  at  large,  control  the  obligation  of  compliance 
with  its  summons  in  this  case,  as  it  would,  should  we  re- 
ceive a  similiar  one  to  attend  the  trials  of  Blannerhasset 
and  others  in  the  Mississippi  Territory,  those  instituted 
at  St.  Louis,  and  other  places  on  the  western  waters,  or 
at  any  place  other  than  the  seat  of  government.  To 
comply  with  such  calls,  would  leave  the  nation  without 
an  executive  branch,  whose  agency  nevertheless  is  un- 
derstood to  be  so  constantly  necessary,  that  it  is  the  sole 
branch  which  the  constitution  requires  to  be  always  in 
function.  It  could  not,  then,  intend  that  it  should  be 
withdrawn  from  its  station  by  any  co-ordinate  author- 
ity. 

With  respect  to  papers,  there  is  certainly  a  public  and 
private  side  to  our  offices.  To  the  former  belong  grants 
of  lands,  patents  for  inventions,  certain  commissions, 
proclamations,  and  other  papers  patent  in  their  nature. 
To  the  other  belong  mere  executive  proceedings.  All 
nations  have  found  it  necessary,  that,  for  the  advantage- 
ous conduct  of  their  affairs,  some  of  these  proceedings  at 
least,  should  remain  known  to  their  executive  functionary 


ORDER     OF     THE    NAVY    DEPARTMENT.  267 

only.  He,  of  course,  from  the  nature  of  the  case,  must 
be  sole  judge  of  which  of  them  the  public  interests  will 
permit  publication.  Hence  under  our  constitution,  in 
requests  of  papers  from  the  legislative  to  the  executive 
branch,  our  exception  is  carefully  expressed, "  as  to  those 
which  he  may  deem  the  public  welfare  may  require  not 
to  be  disclosed,"  as  you  will  see  in  the  inclosed  resolution 
of  the  House  of  Representatives,  which  produced  the 
message  of  January  22d,  respecting  this  case.  The  re- 
spect mutually  due  between  the  constituted  authorities 
in  their  official  intercourse,  as  well  as  sincere  dispositions 
to  do  for  everyone  what  is  just,  will  always  insure  from 
the  executive,  in  exercising  the  duty  of  discrimination 
confided  to  him,  the  same  candor  and  integrity,  to  which 
the  nation  has  in  like  manner  trusted  in  the  disposal  of 
its  judiciary  authorities.  Considering  you  as  the  organ 
for  communicating  these  sentiments  to  the  court,  I  ad- 
dress them  to  you  for  that  purpose,  and  salute  you  with 
esteem  and  respect. 

TH.  JEFFERSON. 

Accompanying  this  letter  is  a  copy  of  the  resolution 
of  the  House  of  Representatives,  containing  the  excep- 
tion to  which  the  president  refers.  I  have  also  received 
a  letter  from  Mr.  Smith,  secretary  of  the  navy,  containing 
an  authentic  copy  of  the  order  which  was  wanted,  pre- 
cisely corresponding  with  the  unauthenticated  copy  in 
my  possession. 

Mr.  Wickham. — I  presume  that  these  must  be  consid- 
ered and  noted  as  the  return  to  the  "subpoena  duces 
tecum." 

Mr.  Hay. — So  far  as  they  go.  When  we  receive  Gen- 
eral Wilkinson's  letter,  the  return  will  be  complete.  I 
have  also  received  a  letter  from  the  secretary  at  war, 
which  contains  all  the  orders  of  his  department  relative 
to  Aaron  Burr.  All  which  papers  I  shall  deposit  with 
the  clerk  of  this  court. 

The  following  is  the  order  of  the  navy  department  : 

I  certify  that  the  annexed  is  a  true  copy  from  the 
records  in  the  office  of  the  department  of  the  navy  of 
the  United  States,  of  the  letter  from  the  secretary  of 


268  TRIAL     OF    AARON    BURR. 

the  navy,  to  Captain  John  Shaw,  dated  2oth  December, 
1806. 

In  faith  whereof,  I  Robert  Smith,  secretary  of  the 
navy  of  the  United  States  of  America,  havie  signed  these 
presents,  and  caused  the  seal  of  my  office  to  be  affixed 
hereto,  at  the  city  of  Washington,  this  I7th  day  of  June, 
anno  Domini,  1807  ;  and  in  the  3ist  year  of  the  indepen- 
dence of  the  said  States. 

(Registered,)  .  RT.  SMITH, 

Ch.  W.  Goldsborough,  Secretary  of  the  Navy. 

Ch.  Clk.  N.  D. 

(Copy.) 

NAVY  DEPARTMENT,  zolh  December,  1806. 
SIR, 

A  military  expedition  formed  on  the  Western  waters 
by  Col.  Burr,  will  soon  proceed  down  the  Mississippi,  and 
by  the  time  you  receive  this  letter,  will  probably  be  near 
New  Orleans.  You  will,  by  all  the  means  in  your  power, 
aid  the  army  and  militia  in  suppressing  this  enterprise. 
You  will  with  your  boats  take  the  best  position  to  inter- 
cept and  to  take,  and  if  necessary,  to  destroy  the  boats 
descending  under  the  command  of  Col.  Burr,  or  of  any 
person  holding  an  appointment  under  him.  There  is 
great  reliance  on  your  vigilance  and  exertions. 

I  have  the  honor  to  be,  sir,  your  most  obedient, 

(Signed)  RT.  SMITH. 

Captain  John  Shaw, 
or  the  Commanding  Naval  Officer, 

at  New-Orleans. 

Mr.  Randolph. — May  it  please  your  honors  : 
I  am  now  about  to  commit  to  your  attention  the  mo- 
tion of  which  we  gave  notice  some  days  past.  The  gene- 
ral purport  of  it  will  be  to  award  a  rule  against  General 
Wilkinson,  to  show  cause  why  an  attachment  should  not 
issue  against  him  for  attempting  to  obstruct  the  free  ad- 
ministration of  justice.  Whether  we  shall  be  again 
charged  with  an  intention  to  inflame  the  public  mind 
against  General  Wilkinson,  or  to  defame  him,  I  know 
not  ;  but  of  one  thing  I  am  conscious,  that  my  object  is 
essentially  different.  We  do  not  proceed  on  mere  gene- 
ral surmise  ;  but  on  plain  facts.  We  shall  endeavor  to 


MOTION    FOR    AN    ATTACHMENT.       269 

remove  all  the  prejudices  which  have  been  excited,  and 
shall  rely  on  plain  facts  only.  We  hope  to  guard  the 
public  against  erroneous  impressions,  by  depending  on 
correct  evidence  alone  ;  and  that  it  will  be  manifest  to 
all,  that  every  effort  to  obstruct  the  free  will  of  a  witness 
should  be  punished.  If  General  Wilkinson's  character 
should  be  incidentally  affected,  it  will  not  be  our  fault. 
If  he  must  take  upon  himself  the  legal  consequences  of 
his  own  improper  conduct  ;  if  he  must  submit  to  legal 
doctrines  ;  he  can  not  complain.  It  is  due  to  the  United 
States,  to  the  witnesses  themselves,  and  to  the  persons 
accused,  that  obstructions  to  the  free  administration  of 
justice  should  not  pass  with  impunity.  Sir,  we  shall  at- 
tach General  Wilkinson  on  specific  allegations,  and  by 
specific  facts.  It  is  his  duty,  if  he  can,  to  repel  these  by 
legal  evidence  ;  not  by  illegal  testimony,  or  the  protes- 
tations of  his  counsel,  that  they  believe  him  to  be  inno- 
cent, and  an  Israelite  without  guile.  I  prefer  this  course 
that  there  may  be  no  more  waste  of  time  in  passing  eu- 
logies on  General  Wilkinson.  There  will  be  a  future 
occasion  which  will  require  the  concentration  of  all  his 
luster,  and  it  will  be  as  well  that  the  beams  of  his  glory 
should  not  be  dissipated  till  we  make  the  attack  that 
will  strike  home. 

The  ground  on  which  we  make  the  motion  is  this,  that 
General  Wilkinson,  who  is  now  before  the  court,  in  a  case 
depending  between  the  United  States  and  Mr.  Burr,  de- 
liberately abused  "the  process  of  the  law  relative  to  a 
witness  who  has  been  summoned  in  this  case.  He  con- 
trived, on  his  own  affidavit,  and  by  his  own  power,  to 
obstruct  the  free  course  of  legal  testimony,  and  to  inti- 
midate, and  coercively  bring  to  this  court,  a  witness,  by 
the  abuse  of  military  authority.  For  this  illegal  pro- 
ceeding it  is  the  dftty  of  the  court  to  take  notice  of  Gene- 
ral Wilkinson.  As  the  cases  ought  to  be  kept  distinct,  I 
speak  of  him  only  ;  but  it  may  be  necessary  to  carry  the 
principle  into  immediate  execution  as  to  other  persons. 
The  grounds  of  this  accusation  are  the  depositions  of 
James  Knox  and  Chandler  Lindlsey,  which  will  be  read 
to  the  court. 

Mr.  Hay  objected  to  the  introduction  of  these  affi- 
davits, because  he  understood  that  they  had  been  writ- 


270  TRIAL     OF    AARON     BURR. 

ten  and  dictated  by  the  counsel  of  Mr.  Burr.  He  did 
not  pretend  to  say,  that  they  contained  anything  which 
they  did  not  believe  to  be  true,  nor  did  he  know  their  con- 
tents ;  but  he  understood,  that  they  were  introduced  for 
the  purpose  of  strengthening  some  testimony  concern- 
ing General  Wilkinson,  or  of  showing  improper  conduct 
on  his  part  ;  that  he  understood,  that  those  witnesses 
had  voluntarily  gone  and  given  information  to  the  coun- 
sel, upon  which  the  counsel  had  written  or  dictated  the 
terms  of  those  affidavits ;  that  his  idea  was  that  when 
affidavits  are  taken  by  the  opposite  counsel,  though  the 
court  may  be  perfectly  satisfied  with  the  conduct  of  the 
counsel  in  taking  them,  yet  according  to  universal  prac- 
tice the  court  would  not  permit  them  to  be  read  ;  that 
the  legal  authorities  showed,  that  a  court  would  never 
issue  an  attachment  founded  on  affidavits  taken  by  the 
agent  or  attorney  of  the  party  applying  for  it ;  that  this 
court  would  admit  of  no  exceptions  to  this  rule  ;  the 
court  of  King's  bench  determined  that  "  it  was  invariable 
and  founded  on  the  wisest  and  most  obvious  principles." 
Mr.  Hay  here  cited  the  case  of  the  King  v.  Wallace,  in 
3  Term  Rep.  p.  403,  where  the  court  had  set  aside  an 
affidavit  that  had  been  sworn  to  before  the  attorney  for 
the  prosecution,  and  refused  to  grant  an  attachment ;  that 
the  present  case  was  stronger  than  that.  The  objection  in 
that  case  was,  that  it  was  sworn  to  before  the  counsel ;  the 
objection  here  is,  that  it  is  penned  by  the  counsel,  and  is 
therefore  stronger  and  more  within'  the  scope  of  that 
policy  on  which  the  principle  of  the  law  is  founded  ;  that, 
however,  he  did  not  mean  to  reproach  gentlemen  for  the 
course  pursued  in  this  instance  ;  that  he  was  sure  that 
nothing  like  impropriety  was  thought  of  by  them,  and 
that  perhaps  he  would  have  done  the  same  thing  in  their 
situation.  • 

Mr.  Baker, — May  it  please  the  court,  I  shall  not  un- 
dertake to  say,  what  Mr.  Hay  would  have  done  in  our 
situation,  nor  do  I  feel  much  interested  in  knowing;  but 
I  rise  solely  for  the  purpose  of  correcting  a  mistake  which 
he  has  committed.  He  says,  that  these  affidavits  were 
originally  written  by  Mr.  Burr's  counsel.  As  to  the  affida- 
vit of  Knox,  I  know  I  can  say  nothing  ;  but  as  to  the 
affidavit  of  Lindsley,  it  was  written  by  himself.  The 


MOTION    FOR    AN    ATTACHMENT.       271 

facts  are  simply  these  :  He  called  upon  me  with  his  affi- 
davit already  written  (I  had  never  seen  him  before),  to 
know  whether  it  were  correctly  written  or  not.  I  read  it, 
corrected  some  inaccuracies  in  the  style,  and  wrote  it 
over  again  :  it  was  not  sworn  to  whe^i  brought  to  me. 
After  I  had  corrected  those  grammatical  errors,  and  'sub- 
mitted it  to  Mr.  Lindsley's  inspection,  he  said  that  the 
statement  was  perfectly  correct. 

Mr.  Wirt. — Do  you  know,  Mr.  Baker,  who  induced 
Mr.  Lindsley  to  adopt  that  course?  • 

Mr.  Baker. — Perhaps  yourself,  sir:  I  never  saw  Mr. 
Lindsley  before. 

Mr.  Mac  Rae. — I  beg  to  add  one  observation  to  what 
has  been  already  said  on  this  subject.  As  the  witnesses 
are  now  before  the  court,  and  can  be  examined  viva  voce, 
there  is  no  inconvenience  in  the  objection.  If  they 
were  at  a  distance,  so  that  they  could  not  be  personally 
examined,  we  should  have  found  no  difficulty  in  admit- 
ting their  affidavits  ;  we  should  have  waived  the  objection, 
lest  it  might  seem  that  we  were  afraid  of  them.  I  hope 
that  it  will  not  be  believed,  that  we  feel  any  such  ap- 
prehension. I  hope  that  it  will  seem  to  the  court  right, 
that  the  affidavits  shall  not  be  read,  especially  as  our 
affidavits  were  objected  to,  when  our  witnesses  were  at 
New  Orleans.  I  hope  that  gentlemen  will  not  insist  on 
the  necessity  of  discussing  this  point  further.  If  they 
wish  to  know  the  whole  truth,  they  will  consent  to  ex- 
amine the  witnesses  in  open  court. 

Mr.  Wickliam  hoped  that  gentlemen  would  persevere 
in  the  course  which  they  had  this  day  begun  ;  and  in- 
stead of  warm  and  desultory  declamation,  come  at  once 
to  the  law  and  authorities.  They  object  to  the  reading 
of  our  affidavits,  and  the  question  is  whether  in  point  of 
law,  their  objection  will  be  sustained?  It  happens  in 
many  cases,  and  must  happen  in  the  progress  of  litiga- 
tion, whether  between  individuals,  or  between  the  public 
and  individuals,  that  collateral  points  arise,  in  which  it  is 
necessary  that  testimony  should  be  heard:  but  if  on 
every  collateral  question,  viva  voce  testimony  were  to  be  •- 
introduced,  great  inconvenience  would  result ;  it  would 
lead  to  an  unnecessary  confusion  and  waste  of  time:  and 
the  regular  and  established  practice,  therefore,  is,  when 


272  TRIAL     OF    AARON    BURR 

these  'collateral  points  occur,  not  to  produce  viva  voce 
testimony,  but  affidavits  in  support  of  them.  These 
affidavits  are  made  before  private  magistrates ;  that  is 
the  authority  by  which  they  are  taken.  These  being  in 
writing,  must  necessarily  be  written  by  one  of  three  de- 
scriptions of  persons:  by  a  magistrate  or  judge;  by  the 
party  himself,  or  his  agent ;  or  by  the  witnesses.  With 
respect  to  the  necessity  of  their  being  written  by  a  judge 
or  magistrate,  it  will  not  be  contended,  that  they  are 
•ound  to  submit  to  the  drudgery  of  writing  the  affidavits, 
and  most  of'them  have  no  clerks.  It  is  therefore  usual 
to  prepare  the  affidavits  before,  and  for  the  magistrate 
to  sign  them  thus  previously  prepared  :  and  besides,  a 
man  may  be  an  able  magistrate,  but  a  bad  clerk.  With 
respect  to  the  parties  themselves,  it  will  not  be  con- 
tended, that  they  ought  to  write  them,  because  a  very 
great  proportion  of  them  are  unable  to  write  them. 
Who,  then,  is  to  write  them?  their  counsel  or  agent,  or 
some  indifferent  person.  How  can  the  party  get  an  in- 
different person  to  write  his  affidavits  ?  The  moment  he 
calls  for  an  indifferent  person  to  write  them,  he  becomes 
his  agent,  and  is  incapacitated  from  writing  them  :  and 
according  to  the  gentlemen's  arguments,  these  affidavits 
could  very  seldom  be  produced.  Hence,  from  the 
necessity  of  the  case,  a  custom  has  prevailed  among 
lawyers,  to  write  their  clients'  affidavits;  and  the  gentle- 
man himself  admitted  fifteen  minutes  ago,  that  he  has 
been  in  the  habit  of  doing  so  himself. 

As  to  the  authority  quoted  by  Mr.  Hay,  had  he  consid- 
ered it  but  one  tenth  part  of  the  time  he  has  argued  it,  he 
would  have  seen  that  it  did  not  apply.  In  that  case, 
the  affidavits,  on  which  the  motion  for  an  attachment 
was  founded,  were  sworn  to  before  Lothian,  who  was  the 
attorney,  or  agent,  for  the  prosecution.  Here  the  affi- 
davit was  written  by  the  witness  himself,  and  only  cor- 
rected and  copied  by  the  counsel.  Does  the  gentleman 
suppose,  that  the  actual  presence  of  the  attorney  would 
vitiate  the  affidavit?  When  a  man  writes  an  affidavit, 
he  acts  a  mere  ministerial  part ;  but  he  who  administers 
an  oath,  performs  the  judicial  function  of  a  judge,  or 
justice  of  the  peace.  It  is  a  sacred  rule,  that  a  magis- 
trate who  administers  an  oath,  should  be  disinterested 


MOTION    FOR     AN    ATTACHMENT.        273 

between  the  parties;  and  in  the  case  referred  to,  he  who 
administered  the  oath  was  not  disinterested,  but  the  at- 
torney for  the  prosecution.  I  recollect  an  instance  in 
this  city,  where  a  magistrate,  who  was  also  a  practitioner 
of  the  law,  drew  an  oath  and  administered  it  himself,  • 
even  in  his  own  case :  the  first  was  not  improper,  though 
the  second  was.  Here  Mr.  Baker  wrote  the  affidavit, 
but  did  not  administer  the  oath.  There  is  a  substantial 
and  plain  reason,  why  the  oath  should  be  administered 
with  impartiality,  but  no  reason  can  be  assigned  why  the 
agent  of  the  party  should  not,  as  in  this  instance,  copy, 
and  correct,  in  point  of  language,  at  the  instance  of  the 
witness;  an  affidavit  prepared  by  the  witness  himself. 
As  to  the  witness  being  present,  it  makes  no  difference. 
The  practice,  in  such  cases,  is  to  read  affidavits  just  as  if 
the  witnesses  were  absent. 

Mr.  Burr. — If  it  were  perfectly  agreeable  to  you,  I 
should  have  no  objection  to  an  examination  of  the  wit- 
nesses in  court ;  although  the  practice  is,  on  principles 
of  convenience,  otherwise:  but  if  the  court  will  submit 
to  the  inconvenience,  it  will  be  agreeable  to  me.  As  to 
the  origin  of  this  business,  it  is  not  perfectly  undeistood, 
and  some  unfounded  insinuations  have  been  made  con- 
cerning it.  James  Knox  called  on  me,  stated  the  usage 
which  he  had  received,  and  asked,  whether  any  redress 
could  be  obtained?  One  of  my  counsel,  who  was  pres- 
ent at  this  interview,  concurred  in  opinion  with  me,  that 
some  notice  should  be  taken  of  this  proceeding^  We  at 
first  thought  of  referring  him  to  Mr.  Hay;  but  on  recon- 
sideration, we  thought  that,  perhaps,  Mr.  Hay  might 
think  himself  disqualified  from  acting.  Mr.  Knox's  own' 
idea  was,  that  he  ought  to  come  into  court,  and  complain 
himself,  of  the  treatment  he  had  received. 

Mr.  Wirt. — Mr.  Wickham  says,  that  it  is  the  practice 
to  produce  affidavits  on  such  motions;  but  this  practice 
is  founded  on  expediency,  and  when  it  ceases  to  be  ex- 
pedient, the  practice  will  also  cease.  The  inquiry  then 
will  be,  whether  it  will  be  most  expedient  to  examine  a 
number  of  witnesses  openly,  who  are  now  in  court,  or 
take  their  affidavits  and  read  them  ?  The  court  would 
wish  to  come  at  the  true  state  of  facts.  I  hope  the  gen- 
tlemen on  the  othe$  side,  would  also  wish  the  same.  You 
18 


274  TRIAL  OF  AARON  BURR. 

* 

are  called  on  to  make  a  rule  against  General  Wilkinson, 
to  show  cause  why  an  attachment  should  not  issue 
against  him  ;  and  to  support  this  application,  affidavits 
are  offered,  and  said  to  be  founded  on  expediency.  We 
contend  that  viva  voce  testimony  is  better.  Before  you 
grant  it,  you  must  be  satisfied  that  it  is  right.  The  ques- 
tion thep  is,  which  is  most  satisfactory  to  your  mind,  an 
affidavit  taken  by  the  party,  or  evidence  stated  by  the 
witness  himself?  How  can  the  court  be  satisfied  till 
the  witness  be  examined  and  fully  heard  ?  Was  the 
affidavit  written  by  the  witness  himself?  Did  it  proceed 
from  him  ?  or,  was  it  advised  by  him  ?  or,  did  it  contain 
his  words?  The  counsel,  no  doubt,  endeavored  to  draw 
it  as  correctly,  and  as  free  from  bias,  as  he  could  ;  but  it 
was  difficult  to  state  it  precisely  as  the  witness  would 
have  done.  The  witness  states  his  facts,  but  he  states 
them  in  his  own  language.  Is  it  likely,  that  when  it  is 
changed  to  the  words  of  the  attorney,  the  idea  intended 
to  be  expressed  by  the  witness,  will  be  precisely  retained  ? 
If  you  take  the  evidence,  not  from  the  fountain  head,  the 
witness  himself,  but  from  a  statement  taken  by  another, 
you  run  the  risk  of  not  being  rightly  informed  ;  but  if 
you  examine  the  witness,  there  can  be  no  mistake. 

Mr.  Botts  said,  that  Mr.  Burr  had  acquiesced,  and  con- 
sented that  the  witnesses  should  be  examined  in  court, 
though  he  regretted  the  departure  from  usage  established 
on  principles  of  convenience. 

Mr.  Martin. — If  the  witness  be  examined,  the  clerk 
will  reduce  what  he  shall  say  to  writing,  so  as  to  give  it 
the  effect  of  an  affidavit. 

Mr.  Hay  apologized  for  frequently  misunderstanding 
Mr.  Burr.  He  complained,  that  from  their  respective 
situations  he  could  not  hear  the  accused,  notwithstanding 
his  clear  and  distinct  voice,  and  emphatic  manner. 

James  Knox  was  then  called,  when 

Mr.  Mac  Rae  addressed  the  court.  He  said,  that  as 
the  business  was  of  considerable  importance  to  General 
Wilkinson,  it  was  extremely  desirable  that  he  should  be 
present  at  the  examination  of  this  and  the  other  witnesses 
who  might  be  introduced  on  this  occasion  ;  that  he  was 
now  before  the  grand  jury,  and  he  had  applied  to  the  gen- 
tlemen on  the  other  side  to  postpone  the  motion  till  he 


MOTION    FOR    AN    ATTACHMENT.       275 

could  be  present,  but  they  objected  to  any  delay.  He 
therefore  found  it  necessary  to.  apply  to  the  court,  to  sus- 
pend the  examination  for  a  short  time,  till  the  general 
could  be  present ;  that  important  facts,  unknown  to  the 
counsel  for  the  prosecution,  might  be  within  the  knowl- 
edge of  General  Wilkinson,  who  therefore  might  material- 
ly direct  their  inquiries  in  this  examination. 

Mr.  Martin  said,  that  the  gentleman  did  not  seem  to 
know  in  what  stage  of  the  business  they  were  then  en- 
gaged ;  that  the  question  was,  whether  a  rule  should  be 
granted  to  show  cause  ;  with  which  neither  General  Wil- 
kinson nor  his  counsel  had  anything  to  do,  and  were  not, 
in  fact,  as  much  as  supposed  to  be  present  ;  and  that  the 
court  would  take  care  that  the  witnesses  should  answer 
correctly. 

Mr.  Wick  ham  complained,  that  they  had  been  for  a 
considerable  time  prevented  from  making  the  motion,  by 
the  delay  of  the  gentlemen  on  the  other  side,  and  of  Gen- 
eral Wilkinson. 

Mr.  Mac  Rae. — The  gentleman  from  Maryland  has 
said,  that  we  were  not  present  in  court.  I  thought  that 
all  the  while  he  spoke,  we  were  m  court.  The  court 
were  pleased  to  notice  our  presence,  and  we  were  heard 
and  answered  politely  and  respectfully:  and  what  has  the 
court  said?  That  gentlemen  on  both  sides  in  court,  had 
a  right  to  argue  this  question.  It  is  now  too  late  for 
them  to  say,  that  they  are  exclusively  engaged  in  this 
motion,  which  we  have  an  acknowledged  right  to  discuss 
and  oppose  ;  and  we  shall  be  perfectly  satisfied,  if  the 
court  will  take  notice  of  our  observations,  although  Mr. 
Martin  should  not.  We  hope,  that  if  the  reasons  for  de- 
siring General  Wilkinson's  attendance  appear  as  strong  to 
the  court,  as  to  the  counsel  for  the  prosecution,  it  will 
consent  to  this  short  delay.  We  mean,  with  the  leave 
of  the  court,  to  put  some  questions  to  the  witnesses,  and 
also,  to  produce  some  testimony  ourselves;  and  we  feel 
confident,  that  we  can  s'atisfy  the  court,  that  no  just  foun- 
dation exists  for  the  present  motion. 

Mr.  Martin. — I  thought  I  had  assigned  very  sufficient 
reasons,  why  the  business  should  not  be  delayed.  I  knew 
they  were  personally  present.  I  saw  them  ;  and  if  I  had 
not,  they  took  good  care  to  make  us  ojten  hear  them 


276  TRIAL    OF  AARON  BURR. 

They  detained  us  three  or  four  hours  the  other  day,  in 
opposing  the  motion  for  a  subpoena  duces  tecitm,  after  the 
court  had  decided  that  they  had  no  right  to  interfere. 
It  is  unfair  to  take  up  a  great  deal  of  the  time  of.  the 
court,  when,  in  point  of  legal  contemplation,  they  are 
not  in  court.  Let  the  present  motion  be  decided,  and 
when  the  rule  is  made,  they  may  bring  counter  affidavits. 
Mr.  Wirt. — If  presence  depend  on  speaking,  Mr. 
Martin  is  not  only  present,  but,  perhaps,  is  the  only  per- 
son who  is.  I  am  willing,  however,  to  be  considered,  if 
he  please,  as  not  legally  present ;  but,  as  amicus  curia,  I 
may  make  a  few  observations.  These  questions  may 
merit  the  consideration  of  the  court.  "  Here  is  a  rule 
which  I  am  required  to  make  on  General  Wilkinson,  to  or- 
der him  to  show  cause  why  an  attachment  should  not  issue 
against  him.  Shall  I  make  it  on  a  personal  examination 
of  the  witnesses,  or  follow  custom,  and  by  taking  their 
affidavits  exclude  part  of  their  evidence?  Shall  I  use 
one  or  two  links,  when  I  may  have  the  whole  chain  be- 
fore me?  Where  testimony  is  present,  ought  I  not  to 
take  the  full  benefit  of  it  ?"  The  inquiry  will  be  made, 
whether  the  man's  interrogatories,  when  General  Wilkin- 
son is  present,  will  not  give  more  satisfaction  to  the 
court  than  his  mere  affidavit  ?  Will  not  the  court  think 
that  a  full  view  of  the  evidence  will  be  better?  Though 
not  present,  he  is  deeply  interested  in  the  event  of  this 
motion,  when  its  object  is,  that  he  should  show  cause 
why  an  attachment  should  not  issue  against  him  for  a 
supposed  contempt  of  the  court ;  his  character  as  a  man, 
as  well  as  his  credit  as  a  witness,  is  affected.  We  are 
told  that  the  streams  of  the  prosecution  should  be  kept 
clear  and  untroubled.  If  gentlemen  be  serious  in  these 
admonitions,  they  will  not  persist  in  this  mode  of  ex- 
hibiting mutilated  testimony  ;  for  these  ex  parte  affi- 
davits, uncontradicted  by  General  Wilkinson,  may 
unjustly  prejudice  the  public  opinion  against  him.  We 
hope  that  the  court  will,  for  themselves,  as  well  as  for 
General . Wilkinson  ;  for  expediency  and  public  justice, 
suspend  this  examination  for  a  short  time,  till  he  can  be 
present.  We  do  not  wish  a  postponement  for  two  or 
three  days  or  more,  but  a  mere  suspension  while  he  is 
necessarily  before  the  grand  jury. 


MOTION    FOR    AN    ATTACHMENT.       277 

Mr.  Martin  drew  an  analogy  between  this  motion  and 
the  proceedings  before  the  grand  jury.  Gentlemen, 
said  he,  have  no  more  right  to  interfere  in  this  stage  of 
the  business,  than  we  have  to  interfere  before  the  grand 
jury.  It  is  exclusively  in  the  power  of  the  counsel  for 
the  prosecution  to  send  witnesses  before  the  grand  jury. 
We  have  no  such  right.  When  the  grand  jury  find  a 
true  bill,  and  the  trial  in  chief  comes  on  before  the 
court,  we  can  introduce  what  evidence  we  please,  but 
not  before  ;  the  principle  is  the  same  here.  Gentlemen 
have  no  right  to  introduce  testimony  when  we  apply  for 
the  rule,  but  after  it  is  granted,  and  they  come  forward 
to  show  cause  against  issuing  the  attachment,  then  they 
have  an  undoubted  right  to  adduce  what  testimony  they 
think  proper,  to  show  that  it  ought  not  to  issue.  But 
gentlemen  say,  that  granting  the  rule  may  possibly  tar- 
nish the  reputation  of  General  Wilkinson.  He  may,  on 
showing  cause  against  the  attachment,  come  forward  in 
vindication  of  his  character.  We  have  no  right  to  bring 
testimony  in  our  exculpation  before  the  grand  jury, 
where  indictments  and  accusations,  committing  our 
character  and  as  materially  injuring  us  as  he  can  be  by 
this  motion,  are-  exhibited.  Were  we  to  attempt  it, 
their  answer  to  us  would  be,  "  You  are  irregular ;  you 
can  introduce  no  evidence  before  the  grand  jury,  and  if 
they  find  any  bill  against  you,  you  can  wipe  off  the  im- 
pression made  by  their  finding,  in  the  usual  and  regu- 
lar manner."  As  this  is  the  way  in  which  we  wipe 
off  the  impression  of  what  is  before  the  grand  jury,  so 
he  can  wipe  off  the  effect  of  granting  the  rule,  on  showing 
cause. 

Mr.  Burr. — It  is  not  my  wish  to  prevent  gentlemen 
from  producing  testimony  in  behalf  of  General  Wilkin- 
son, or  to  prevent  his  witnesses  from  being  heard  ;  but 
this  can  be  done  by  introducing  their  affidavits.  I 
object  only  to  the  innovation  of  examining  them  per- 
sonally on  collateral  motions  like  this,  instead  of  reading 
their  affidavits. 

Mr.  Hay. — It  seems  to  be  conceded  that  General 
Wilkinson  may  produce  testimony  in  his  part.  He  has 
been  three  hours  before  the  grand  jury,  and  in  a  very 
short  time,  he  may  be  discharged  and  appear  in  court. 


278  TRIAL  OF  AARON  BURR. 

It  is  singular  that  we  should,  by  their  own  concession 
have  the  right  to  appear  and  interrogate  witnesses  after 
the  rule  is  made,  and  yet  not  at  this  stage  of  the  pro- 
ceedings, when  we  are  present  to  contest  it.  The  party 
on  whom  such  a  rule  is  usually  made,  is  absent ;  and  the 
object  of  it  is,  to  bring  him  forward  and  to  show  cause, 
if  he  can,  why  he  should  not  be  attached  for  his  sup- 
posed misconduct.  No  opposition  is  usually  made, 
because  the  party  happens  to  be  at  a  distance  ;  yet  if 
he  be  on  the  spot,  as  in  the  present  case,  there  could  be 
no  sort  of  reason  or  justice  in  preventing  him  from 
showing  at  once  that  the  charges  against  him  are  per- 
fectly visionary  and  groundless. 

Mr.  Wick  ham  stated  the  importance  of  immediately 
proceeding  with  the  motion  ;  and  that,  according  to  law 
and  practice,  there  was  no  just  ground  of  opposing  it; 
but  that  if  the  counsel  on  the  other  side  would  name  a 
particular  hour  in  the  course  of  this  day,  when  the  mo- 
tion would  be  made,  they  would  waive  their  right  of 
going  on  with  it  now. 

Mr.  Martin  hoped,  that  the  court  would  express  in  its 
order,  that  this  postponement  was  not  in  consequence  of 
the  right  of  the  gentlemen  to  demand  it,  but  of  the 
consent  of  his  friend. 

Chief  Justice  said,  that  it  was  necessary  to  do  so.  He 
stated  what  the  law  and  practice  were,  and  observed, 
that  if  the  motion  were  to  be  postponed  till  Monday,  and 
the  witnesses  on  both  sides  were  then  heard,  it  would 
answer  every  purpose ;  and  ,it  might  be  considered 
then  as  a  motion  for  an  attachment,  not  for  a  rule 
to  show  cause.  This  would  prevent  disputes  and  delay. 

Mr.  Randolph. — We  shall  move  then  immediately  for 
an  attachment. 

Mr.  Mac  Rae  observed,  that  they  only  wished  the 
motion  delayed  till  General  Wilkinson  could  be  permitted 
to  attend. 

Mr.  Hay  wished,  that  in  order  to  save  time,  gentlemen 
would  prepare  their  interrogatories,  by  reducing  them  to 
writing. 

Mr.  Martin  said,  that  this  could  not  be  done  till  it  was 
determined  that  an  attachment  would  go  ;  but  that  there 
would  be  no  delay  on  that  account. 


MOTION    FOR    AN    ATTACHMENT.       279 
MONDAY,  June  22d,  1807. 

Mr.  Randolph,  having  directed  James  Knox  and  Chand- 
ler Lindsley  to  be  called,  was  proceeding  to  open  the 
motion  which  he  had  introduced  on  Saturday — 

Mr.  Mac  Rae  had  understood  that  this  motion  was  to 
be  postponed  till  General  Wilkinson  could  be  present  ; 
and  that  the  moment  he  was  discharged  from  the  grand 
jury,  they  should  notify  the  opposite  counsel  of  it. 

Chief  Justice  said,  that  as  this  was  a  motion  for  an  at- 
tachment against  General  Wilkinson,  he  ought  to  be 
heard  in  his  defense. 

Here  a  desultory  discussion  took  place. 

Mr.  Botts  observed,  that  from  a  spirit  of  accommoda- 
tion, they  had  agreed  on  Saturday,  to  postpone  their 
motion  till  this  day;  but  it  was  in  certain  expectation 
that  General  Wilkinson  would  be  here  to-day,  and  that 
their  motion  would  be  no  longer  delayed  ;  that  if  they 
consented  to  further  delay,  it  might  take  several  days 
before  the  general  would  be  discharged  from  the  grand 
jury;  that  though  he  was  not  present  himself,  he  was 
ably  represented  by  counsel  ;  and  that  considering  the 
hardships  and  inconvenience  imposed  on  Mr.  Burr,  by 
such  delays,  he  hoped  that  they  would  now  be  permitted 
to  proceed  in  their  motion  for  an  attachment,  or  a  rule  to 
show  cause. 

Mr.  Burr  enforced  the  same  principle.  He  was  un- 
willing to  contravene  the  opinion  or  wishes  of  the  court  ; 
but  the  subject  required  a  few  remarks.  On  Saturday, 
he  had  waived  his  rights  ;  he  had  consented  to  vary  the 
motion,  to  give  General  Wilkinson  an  opportunity  to  be 
present,  under  an  expectation  that  he  would  be  here  on 
this  day,  and  that  the  motion  would  certainly  be  made  ; 
but  he  asked,  whether  his  consent  was  to  be  indefinitely 
extended  to  any  period  ?  It  was  then  in  his  power  to 
vary  the  form  of  the  motion  once  more  ;  but  notwith- 
standing the  inconvenience  it  would  occasion  to  himself, 
he  was  ready  to  waive  his  motion  for  the  present,  if  they 
would  but  name  a  certain  time  to-morrow,  when  they 
would  be  certainly  ready. 

Mr.  VVirt  declared  that  was  impossible  for  them  to 
say,  when  the  grand  jury  would  finish  the  examination 


28o  TRIAL  OF  AARON  BURR. 

of  General  Wilkinson  ;  before  which  time  he  could  not 
come  into  court.  We  would  have  thanked  gentlemen  for 
the  accommodating  spirit  which  they  had  manifested,  if 
they  had  not  completely  wiped  away  the  obligation,  by 
converting  it  into  a  topic  of  reproach.  If  the  rule  were 
granted,  General  Wilkinson  would  still  be  before  the 
grand  jury,  who  would  not  spare  him  to  the  court. 

The  Chief  Justice  said,  that  the  court  would  have  con- 
ceived itself  bound  to  hear  the  motion  for  the  rule,  as  it 
was  a  motion  of  course  ;  but  now  it  was  varied,  partak- 
ing of  a  motion  for  a  rule  to  show  cause,  and  of  one  for 
an  attachment.  That  if'Genera!  Wilkinson  should  be  in 
court  to-morrow,  the  motion  might  go  on  ;  that  it  was 
not  certain  that  he  would  be  present  ;  but  that  the  tes- 
timony of  .Mr.  Burr  could  not  be  delayed  longer  than  till 
to-morrow  ;  and  that  General  Wilkinson  could  cross-ex- 
amine these  witnesses  when  he  came  into  court. 

Mr.  Hay  stated,  that  this  was  the  very  circumstance 
which  they  wished  to  avoid  ;  that  those  witnesses  were 
brought  hither  to  accuse  General  Wilkinson,  and  that  he 
ought  to  be  present  to  shape  his  inquiries  according  to 
their  evidence,  and  to  expose  their  fallacy. 

Chief  Justice. — General  Wilkinson  can  not  cross-exam- 
ine them  till  Mr.  Burr  have  done  with  them. 

Mr.  Hay. — How  can  General  Wilkinson  know  what 
questions  to  put,  if  he  know  not  what  testimony  has  been 
given  by  those  witnesses  ? 

Chief  Justice. — All  the  questions  put  to  them,  and  their 
answers,  will  be  reduced  to  writing. 

Mr.  Hay  was  unwilling  that  gentlemen  should  believe 
that  he  wished  to  waive  the  discussion  for  a  single 
moment.  Perhaps  the  grand  jury  would  spare  him  for 
an  hour.  He  understood  that  he  was  then  employed  in 
decyphering  a  letter  before  them.  He  suggested  that  a 
messenger  should  be  sent  up  to  the  grand  jury,  request- 
ing them  to  spare  him  for  an  hour,  if  it  were  compatible 
with  their  arrangements. 

The  marshal  was  accordingly  sent  to  deliver  the  mes- 
sage, who  returned  and  informed  the  court,  that  General 
Wilkinson  was  at  that  moment  under  examination.  The 
motion  was  accordingly  postponed  till  to-morrow,  when 
it  was  understood  that  it  would  certainly  be  made. 


MOTION    FOR    AN    ATTACHMENT.         281 

The  Chief  Justice  observed,  that  the  attorney  for  the 
United  States  might  state  to  General  Wilkinson,  the 
facts  which  were  charged  in  the  affidavit,  and  which 
would  agree  in  all  the  most  material  points  with  the  in- 
terrogatories that  would  be  proposed  to  the  witnesses. 

TUESDAY,  June  23d,  1807. 

General  Wilkinson  appeared  in  court,  and  took  his  seat 
among  the  counsel  for  the  United  States. 

Mr.  Burr  rose  and  observed  to  the  court,  that  as  Gen- 
eral Wilkinson  was  then  present,  he  would  proceed  with 
his  inquiry.  He  would  have  it,  however,  distinctly  un- 
derstood, that  if  the  charge  could  not  be  broght  home  to 
General  Wilkinson  himself,  so  as  to  support  the  motion 
against  him,  yet  it  must  attach  according  to  the  testi- 
mony, to  any  of  his  subordinate  officers,  as  Mr.  Gaines, 
or  any  other. 

Mr.  Hay  objected  to  this  extension  of  the  motion, 
which  he  had  understood  to  be  confined  to  General  Wil- 
kinson alone  ;  particularly  as  they  had  not  given  any  in- 
timation of  such  an  intention  before  :  As  no  other  per- 
son had  notice  of  this  intended  motion,  but  General 
Wilkinson,  the  inquiry  should  be  restricted  to  him 
alone. 

Mr.  Randolph  insisted  that  the  evidence  to  be  intro- 
duced in  support  of  their  motion,  must  attach  to  General 
Wilkinson,  or  any  of  his  subordinate  officers,  or  any  other 
person,  according  to  what  the  witnesses  should  prove. 
Before  the  witnesses  were  examined,  he  stated  briefly  the 
nature  of  their  motion  and  the  substance  of  the  testi- 
mony by  which  he  expected  to  support  it.  That  the 
charge  against  General  Wilkinson  was,  that  he  had,  in 
conjunction  with  others,  used  unlawful  and  oppressive 
means,  under  color  and  in  abuse  of  the  process  of  this 
court,  to  bring  James  Knox  and  Chandler  Lindsley  from 
New  Orleans  to  this  city;  and  thus  had  obstructed  the 
free  course  of  testimony,  and  the  fair  and  regular  admin- 
istration of  justice  ;  and  he  hoped,  that  if  the  evidence 
would  prove  the  facts  as  he  expected,  the  court  would 
punish  him,  his  associates,  dependents,  or  others,  accord- 
ing to  the  degree  of  their  misconduct. 


282  TRIAL  OF  AARON  BURR. 

The  witnesses  were  then  introduced.  James  Knox 
was  first  sworn.  His  testimony  was  as  folio weth  : 

He  says,  that  he  went  to  New  Orleans  some  time  in 
March;  soon  after  his  arrival,  he  received  a  note  from 
General  Wilkinson,  making  some  inquiry  concerning 
Sergeant  Dunbaugh.  He  waited  on  the  general,  who  re- 
ceived and  treated  him  handsomely,  took  him  by  the 
hand,  and  asked  him  if  he  were  not  afraid  after  what  had 
happened,  and  what  had  been  said  about  him.  He  told 
him  he  was  not  afraid.  He  asked  him  whether  he  were 
at  liberty  to  reveal  what  occurred  in  coming  down  the 
river?  The  witness  said  he  was  at  liberty  to  reveal  what 
he  knew ;  but  did  not  wish  to  do  so.  He  inquired 
whether  the  witness  were  a  free-mason  ?  He  then  began 
to  take  notes.  The  witness  stopped  him  from  taking 
down,  and  told  him  it  was  not  his  wish  to  have  what  he 
said  taken  down.  He  complained  of  distress  ;  expected 
to  be  ruined.  Said  that  there  was  a  great  force  coming 
down  the  river.  He  asked  the  witness  his  circumstances; 
what  money  was  due  to  him  for  his  services  in  com- 
ing down?  He  answered,  $150.  Asked  him  if  he 
were  in  want  of  money,  and  offered  to  supply  him,  which 
the  witness  refused.  He  said  he  was  very  unhappy  ;  had 
lost  his  wife  ;  but  all  that  was  nothing  to  his  trouble  on 
account  of  the  state  of  the  country.  The  witness  said 
that  a  subpoena  had  been  served  on  him  about  the  I2th 
of  May,  by  Mr.  Gaines,  to  attend  this  court ;  that  he  told 
him  he  was  not  prepared  to  come  round  then,  but  he  ex- 
pected to  get  money  in  ten  or  twelve  days,  and  would 
then  be  ready.  He  went  to  Gaines's  office  about  four 
days  afterwards;  was  taken  by  a  sheriff  on  Sunday  even- 
ing, who  took  him  to  Judge  Hall's.  The  judge  was  from 
home.  He  went  again,  and  was  told  by  the  judge  that 
he  must  give  his  deposition,  or  go  round  to  Richmond. 
He  answered,  that  he  had  no  objection  to  going  to  Rich- 
mond ;  but  having  no  counsel,  would  not  give  his  depo- 
sition, lest  he  should  commit  himself.  No  person  but 
the  sheriff  was  present.  The  governor  desired  the  sheriff 
to  take  his  word,  if  the  judge  could  not  be  found:  saw 
the  judge,  and  was  bailed  until  eleven  o'clock  ;  gave  two 
securities,  bound  in  five  hundred  dollars  each,  to  avoid 
being  put  in  jail.  When  he  appeared,  the  judge  had  be- 


MOTION    FOR    AN    ATTACHMENT.       283 

fore  him  a  number  of  printed  interrogatories.  The  wit- 
ness asked  the  liberty  of  reading  them.  He  permitted 
him  to  do  so.  The  judge  asked  him  if  he  would  answer. 
The  witness  refused  until  he  had  counsel  ;  but  offered  to 
be  placed  in  confinement  until  he  could  procure  counsel. 
He  afterwards  saw  as  his  counsel,  Mr.  Carr,  who  informed 
him  that  the  judge  had  no  right  to  demand  such  answers. 
The  judge  still  persisted  in  interrogating  him,  to  some  of 
which  interrogatories  he  answered,  in  order  to  save  trouble. 
The  witness  then  related  everything  that  had  passed, 
from  Meadville  until  his  arrival  in  New  Orleans.  Mr. 
Fort  was  then  sent  for  and  interrogated.  He  made  some 
observations,  and  refused  to  answer  (being,  he  said, 
about  Tom,  Dick  and  Harry).  After  which  the  judge 
gave  the  deputy  marshal  a  note,  who  put  Fort  and  the 
witness  into  jail^among  forty  or  fifty  negroes  and  crim- 
inals. Fort  was  bailed  by  his  friends ;  but  they  required 
bail  of  the  witness  in  five  or  six  thousand  dollars,  and  he 
remained  in  jail  until  the  vessel  was  ready  in  which  he 
embarked.  He  requested  leave  to  get  his  clothes.  Dun- 
baugh  then  came  with  some  men  with  belts  and  side- 
arms.  The  witness  asked  if  they  were  a  guard  ?  He 
was  answered,  no;  but  that  they  were  some  acquaint- 
ances. That  he  has  since  been  told  by  Dunbaugh,  they 
were  a  guard.  They  went  with  Dunbaugh  and  himself, 
to  the  water-edge.  The  witness  asked  whether  Lieuten- 
ant Gaines  were  on  board?  They  said  no,  but  soon 
would  be.  When  Dunbaugh  came  to  the  jail,  he  had 
an  order  which  was  handed  to  the  jailer.  While  in  jail, 
the  witness  wrote  to  Lindsley  and  Doctor  Mulhollon,  to 
come  and  see  him  ;  and  told  them  if  they  came  to  New 
Orleans,  what  they  might  expect.  He  was  informed  by 
the  jailer  that  they  would  be  confined.  He  did  not 
send  the  note.  He  did  not  see  Gaines  until  the  next  day. 
When  Lieutenant  Gaines  came  on  board  the  vessel,  he 
said  the  witness  was  in  a  bad  .humor;  the  witness  told 
him  he  was,  and  Gaines  said  that  he  had  better  be  satis 
fied,  and  bear  his  situation  with  patience.  He  asked 
Gaines  fo/*  leave  to  go  on  shore  for  his  clothes:  he  did 
not  care  wha.t  guard  was  sent  with  him.  Gaines  said, 
that  it  was  not  in  his  power  to  grant  it,  but  the  powei 
i/as  in  General  Wilkinson.  The  witness  was  not  permit 


284  TRIAL  OF  AARON  B  URR. 

ted  to  get  his  clothes,  and  came  without  any  except 
what  he  had  on  at  the  time,  and  except  that  Lindsley 
brought  him  one  of  his  shirts  which  he  had  lent  him. 
Gaines,  after  having  told  him  that  he  might  put  him  in 
irons,  and  bring  him  round  in  that  manner,  offered  him 
forty  dollars.  The  witness  said,  that  if  he  would  let 
him  go  on  shore,  he  did  not  want  it :  otherwise  must  take 
it.  *  It  was  paid  and  sent  on  shore;  twenty  dollars  were 
paid  to  his  landlord,  and  the  other  twenty  dollars  re- 
turned to  him  by  Governor  Claiborne,  who  came  on 
board  and  went  with  them  six  or  eight  miles  on  the 
passage.  And  also,  when  they  came  to  anchor  in 
Hampton  Roads,  Gaines  asked  him  if  he  had  any  objec- 
tion to  coming  to  Richmond;  he  answered  that  he  never 
had  any  objection.  Gaines  said,  that  he  was-  sent  by 
the  authority  of  Judge  Hall.  General  Wilkinson  spoke 
to  him  next  day,  and  asked  him  if  he  had  any  objection 
to  come  to  Richmond.  He  answered  he  had  not,  if 
properly  treated  ;  but  he  had  been  brought  off  without 
clothes  or  money.  General  Wilkinson  had  not  heard  of 
his  not  being  permitted  to  bring  his  clothes,  until  that 
morning.  General  Wilkinson  agreed  he  was  ill-treated. 
Told  him  that  he  (witness)  must  understand,  that  he  was 
brought  round  by  the  direction  of  Judge  Hall.  General 
Wilkinson  proposed  to  let  the  witness  go  to  Richmond 
upon  his  parole  of  honor,  which  was  refused.  Wilkin- 
son said,  if  the  witness  wanted  twenty  dollars,  he  should 
have  it ;  afterwards  he  talked  with  Mr.  Lindsley,  and  re- 
turned to  the  witness  and  said,  if  he  wanted  fifty  dollars 
he  might  have  it.  Witness  wanting  money  to  purchase 
clothes,  took  it.  He  observed,  in  the  first  conversation, 
that  he  had  twice  asked  favors  of  him  and  Gaines,  and 
would  never  ask  a  third  favor  of  any  person.  He  came 
to  Richmond  with  Moxley,  in  a  pilot-boat.  Moxley  told 
him  that  he  had  orders  from  General  Wilkinson,  to  take 
charge  of  the  passengers  on  board  the  Revenge,  and 
bring  them  to  Richmond,  and  there  wait  his  (Wilkin- 
son's) order. 

Cross-examination  by  the  counsel  for  the  United 
States.  Have  you  any  military  commission?  Answer: 
None.  Where  were  you  born  ?  Answer:  In  Maryland  ; 
left  it  very  young  ;  resided  in  Pennsylvania,  and  left  it 


*  MOTION  FOR  AN  ATTACHMENT.  285 

some  time  in  November  last.     Left  Pennsylvania  (Mead- 
ville)  for  New  Orleans,  on  the  24th  or  2$th  of  Novem- 
ber ;  went  down  the  Alleghany  and  Ohio  to  Beaver  ;  went 
from   thence,  with   about  twenty  or  thirty,  to  Blanner- 
hasset's  island,  where  he  did  not  recollect  to  have  stayed 
but  two  days  or  a  day  and  a  half;    left  that   place   some 
time  in  December,  Blannerhasset  and  another  with  them, 
who   were   the    only    persons    who    joined    them    there. 
Stopped  at  Shawnee  Town ;  went  with  about  double  the 
number    to    Cumberland    island,    just    opposite    to    the 
mouth  of  Cumberland  river;  stayed  a  day  and  a   half; 
met  with  Mr.  Burr  and  a  few  others,  the  whole  number 
about  fifty  or  sixty,  about  seven  or  eight  boats,  five  fire- 
arms ;  went  thence  to  Fort  Massac ;  Sergeant  Dunbaugh 
met  them  there  with  a  musket,  and  after  meeting  with 
Mr.   Burr,  he    considered    himself   under    his    direction. 
Went    to     Natchez.       Mr.     Burr    did    not     accompany 
them.     Went  from  Natchez  to  New  Orleans.     Some  of 
the  boats  were  chartered  and  others  sold.     They  arrived 
at  New  Orleans  on  the   I3th  or  i6th  of   March.      The 
first  notice  he  had,  after  seeing  General  Wilkinson,  of 
the  proceedings  against  him  was,  when   he  was   carried 
before  Judge  Hall.     He  was  said  to  be  carried  under  an 
affidavit  of  General  Wilkinson  before  Judge  Hall.     Cap- 
tain Gaines  requested  him  to.  write  to  him  on  shore,  and 
he  would  get  what  he  wanted.     He  was    not  permitted 
to   send  the  letter.     Never   mentioned  this  to   General 
Wilkinson    till  they   arrived  in  Hampton    Roads.     That 
he  was  treated   as  others   while  on   his  way ;  that  is,  as 
well    as  some ;  not    so    well   as  some,   and   better    than 
others.     Arrived  at   Richmond   on  Friday  evening  ;  put 
up  at  the  Bell  tavern.     Three  days  elapsed  before  he  saw 
Mr.  Burr.     He  mentioned  the  treatment  he  had  received 
to  Mr.  Burr,  and  intended  mentioning  it  to  the  court,  on 
his  first  appearance;    but   was  told   it  was  unnecessary. 
That  General  Wilkinson  used  no  terror  against  him  ;  and 
offered  to  relieve  him  if  he  wanted  money.     Whilst  at 
the  mouth    of    Cumberland  river,  and    when   Mr.  Burr 
made  his   escape,  he  was   one  that  took  Mr.  Burr  in  a«- 
wherry,  and   carried   him   some  distance,  and  left  him  in 
the  woods  ;  did  not  hear  him  address  any  one.     The  note 
written  him  by  General  Wilkinson,  and  sent  by  Dun- 


236  TRIAL  OF  AARON  BURR. 

baugh,  was  left  at  his  house  sealed ;  the  object  was  to 
obtain  some  information  about  Dunbaugh.  No  letters. 
Carried  Mr.  Burr's  things  to  a  parson  Bruin's,  as  he  was 
told.  They  had  but  few  guns,  which  were  traded  for  as 
they  descended  the  river.  The  vessel  sailed  from  New 
Orleans  in  half  an  hour  after  General  Wilkinson  came  on 
board.  The  one  hundred  and  fifty  dollars  offered  him  by 
General  Wilkinson,  he  was  induced  to  believe,  was  to 
bribe  him  to  give  evidence  against  Mr.  Burr,  or  it  might 
be  considered  as  a  bribe.  Said  he  could  obtain  from 
Colonel  Tyler  a  sufficiency  to  carry  him  home  under  his 
agreement  with  that  gentleman.  This  conversation  took 
place  before  the  subpoena  was  served. 

Lieutenant  Gaines  was  then  sworn.  He  stated  that 
he  received  a  letter  from  the  attorney-general  of  the 
United  States,  enclosing  subpoenas  for  witnesses  against 
Mr.  Burr.  That  he  went  to  New  Orleans  in  consequence, 
and  arrived  there  on  the  /th  of  May.  Called  several 
times  at  the  house  where  James  Knox  stayed,  with  Mr. 
Lindsley  and  Doctor  Mulhollon,  and  could  not  find  them. 
He  was  told  by  the  landlord,  that  those  gentlemen  walked 
out  whenever  he  approached  ;  they  supposed  he  had 
something  against  them.  He  told  his  business,  and  at 
length  saw  them.  They  said,  that  the  reason  why  they 
endeavored  to  keep  out  erf  his  way  was,  that  they  had 
belonged  to  Burr's  party  and  did  not  wish  to  appear 
against  him.  He  told  them  that  the  commander-in-chief 
offered  them  a  passage  in  a  United  States'  vessel  with 
him.  He  desired  Knox  and  Lindsley  to  say  whether 
they  would  come  or  not  ?  Knox  said  he  could  not 
come  until  he  had  made  some  money  arrangements 
(though  Lindsley  seemed  disposed  to  come  on).  That 
he  then  applied  to  Judge  Hall ;  the  judge  directed  him 
to  obtain  an  affidavit  of  the  refusal,  and  that  he  would 
take  the  proper  steps.  He  said  the  subpoena  might  be 
served  by  the  marshal  or  sheriff,  and  proposed  that  he 
(Lieutenant  Gaines)  should  be  appointed  by  the  marshal, 
a  deputy.  He  refused,  unless  he  could  afterwards  be 
released  from  any  further  service  in  that  capacity.  Next 
day  the  judge  told  him,  that  the  marshal  had  left  a  depu- 
tation for  him,  and  asked  him  if  he  would  act  ;  he  an- 
swered that  he  would  on  the  foregoing  condition,  and 


MOTION    FOR    AN    ATTACHMENT.       287 

that  he  should  not  attend  to  Knox  at  New  Orleans. 
Knox  appeared  always  ill-natured,  which  induced  him 
to  ask  him  if  he  could  do  anything  for  him  ?  He  ob- 
tained from  the  United  States'  agent  at  that  place,  forty 
dollars,  and  offered  it  to  Knox,  which  he  after  sc:ro 
hesitation  accepted.  In  reply  to  his  inquiries  whether 
Knox  wanted  assistance,  he  hesitated  and  then  said,  that 
he  wished  to  go  on  shore  himself,  to  get  some,  necessa- 
ries out  of  his  trunk.  He  told  him  that  as  the  vessel  was 
going  to  sail  so  soon,  he  could  not ;  but  offered  him  pen, 
ink,  and  paper,  and  requested  him  to  write  to  some  friend 
on  shore,  to  do  what  he  wanted  done  ;  or  he  would  act 
for  him  himself.  He  was  then  in  a  very  ill  humor,  and 
was  so  when  the  witness  returned  on  board.  James  Knox 
was  under  no  restaint,  from  the  time  the  vessel  sailed, 
till  they  arrived  at  Hampton  Roads.  To  a  question  put 
by  Mr.  Burr's  counsel,  by  whose  authority  he  acted,  Lieu- 
tenant Gaines  answered,  that  in  every  step  relative  to 
Knox,  he  acted  under  the  authority'of  the  marshal  at 
New  Orleans,  except  that  he  was  authorized  by  the 
commander-in-chief,  to  offer  him  a  passage  in  a  public 
vessel.  In  serving  the  subpoena,  he  acted  under  the  au- 
thority of  the  attorney-general.  When  at  Hampton 
Roads,  he  inquired  of  Knox  whether  he  had  any  dispo- 
sition to  go  to  Richmond?  He  said  that  he  wished  to 
come  to  Richmond,  but  wished  also  to  leave  that  vessel. 
He  told  him  he  should  leave  it,  but  had  not  determined  • 
how  he  would  be  conveyed  to  Richmond.  General 
Wilkinson  told  him,  all  would  come  in  a  vessel  except 
those  who  would  come  in  the  stage.  His  getting  off 
gave  him  no  concern  ;  because  he  supposed  that  Knox 
could  be  caught  again  in  some  part  of  the  country,  if  he 
attempted  to  go  away.  Whilst  the  witness"was  on  shore, 
General  Wilkinson  procured  a  vessel  in  which  Knox  and 
others  were  sent  to  Richmond.  He  considered  Knox 
under  his  authority,  not  as  a  military  officer,  but  as  deputy 
marshal.  That  he  was  committed  to  his  charge,  as  such, 
in  virtue  of  a  warrant  of  commitment  issued  by  Judge  Hall. 
He  did  not  know  the  reason  why  the  judge  made  such  *" 
an  order.  That  General  Wilkinson  never  attempted  to 
exercise  any  authority  over  Knox,  on  his  passage.  That 
the  deputation  was  not  of  his  own  procuring.  That  he 


288  TRIAL     OF    AARON    BURR. 

had  received  an  order  from  the  department  of  war,  to 
leave  the  garrison  at  which  he  commanded,  under  the 
direction  of  some  other  person,  and  to  attend  to  the 
orders  of  the  attorney-general. 

Question  by  Mr.  Burr.  Had  you  no  previous  conver- 
sation with  General  Wilkinson  about  this  deputation  ? 
Answer:  I  had  none.  I  never  heard  nor  had  any  con- 
ception of  such  a  deputation  till  it  was  mentioned  by 
Judge  Hall.  He  gave  to  Sergeant  Dunbaugh  an  order  at 
New  Orleans  to  receive  from  prison  and  deliver  to  the 
commanding  officer  on  board  the  United  States  schooner 
Revenge,  the  body  of  James  Knox,  and  he  was  accord- 
ingly conveyed  on  board. 

Question  by  Mr.  Baker.  Was  not  Dunbaugh  a  sergeant 
in  the  army,  and  did  you  not  consider  him  acting  as  such 
under  you?  Answer:  I  should  not  have  considered  any 
citizen  of  New  Orleans  bound  to  obey  my  order  ;  I  did  not 
consider  Sergeant  Dunbaugh  further  bound  than  in  compli- 
ance with  his  promise.  He  was  called  Sergeant  Dunbaugh, 
but  I  did  not  consider  him  under  my  authority  as  a  military 
officer.  I  took  no  oath  of  office ;  I  gave  no  bond  to  per- 
form the  duties  of  a  deputy  marshal ;  I  do  not  know  that 
I  shall  get  any  pay  ;  I  have  no  promise  of  any.  General 
Wilkinson  made  his  affidavit  at  his  own  quarters,  before 
Mr.  Cenas.  I  do  not  recollect  whom  General  Wilkinson 
consulted  ;  an  attorney  had  been  with  him.  I  delivered 
to  General  Wilkinson  the  subpoenas  received  from  the 
attorney-general  of  the  United  States,  and  among  them 
one  for  myself,  another  for  Mr.  Graham.  I  always  con- 
sidered myself  bound  to  obey  the  orders  of  General  Wil- 
kinson. I  was  bound  before  the  deputation  to  obey  him, 
and  I  continued  so.  I  considered  General  Wilkinson  as 
having  the  -power  of  controlling  myself,  and  every  per- 
son belonging  to  the  army  and  navy  of  the  United  States 
on  board  the  Revenge,  if  he  chose  to  exercise  that  con- 
trol ;  but  I  do  not  consider  that  he  did  exercise  such 
control. 

The  subpoenas  which  I  delivered  to  General  Wilkinson 
came  into  my  hands  afterwards,  but  nothing  passed  be- 
tween the  general  and  myself  on  the  subject,  except  that 
I  stated  to  him  the  orders  I  had  received,  and  the  power 
I  possessed.  My  impression  was,  that  General  Wilkinson 


MOTION  FOR  AN  ATTACHMENT.          289 

must  have  been  privy  to  the  whole,  and  perhaps  recom- 
mended that  I  should  transact  this  business.  I  commu- 
nicated to  him  what  Judge  Hall  had  said  ;  that  an  affi- 
davit must  be  made  of  the  materiality  of  Knox  as  a  wit- 
ness, before  he  could  take  any  steps  to  compel  his  attend- 
ance. General  Wilkinson  knew  that  Knox  was  put  on 
board  the  Revenge  unwillingly. 

On  our  way  to  Virginia  we  stopped  at  Havana  for 
fresh  supplies  of  water  and  other  necessaries.  Some  on 
board  were  sick ;  they  prevailed  on  the  officers  to  call. 
While  preparing  to  go  on  shore,  a  shot  was  fired  from  the 
Moro  castle,  and  orders  given  to  come  on  shore.  They 
went  on  shore  at  the  request  of  the  sick  persons  on  board 
made  to  General  Wilkinson  and  Captain  Read.  They 
did  not  land  until  after  four  o'clock  in  the  afternoon,  and 
a  little  after  dark  they  set  sail  again.  Had  good  provis- 
ions, &c.  on  board.  Heard  Captain  Read  direct  the  cook 
to  Jet  those  people  have  their  provisions  regularly.  To 
a  question  put  by  Mr.  Burr's  counsel,  he  answered,  that 
General  Wilkinson  pointed  out  the  witnesses  on  whom 
the  subpoenas  must  be  served.  He,  on  several  occasions, 
received  advice  and  instructions  from  the  counsel  whom 
he  consulted  how  to  act  in  executing  the  business  in  which 
he  was  engaged. 

Mr,  Randolph. — Upon  what  authority  were  the  forty 
dollars  received  from  the  military  agent  ?  Answer:  The 
money  received  from  the  military  agent  was  applied  for, 
after  several  applications  from  Knox;  and  General  Wil- 
kinson advised  me  to  consult  Judge  Hall,  whether  it 
were  legal  to  demand  money  for  him  ?  And  was  told  by 
the  judge  that  it  was  regular  to  advance  a  reasonable  sum  ; 
and  was  also  told  by  the  military  agent,  that  General 
Wilkinson  had  advised  him  to  advance  that  sum.  The 
general  advised  me  to  consult  the  attorney-general  there, 
or  Mr.  Duncan,  and  the  general's  own  idea  corresponded 
on  the  subject, 

Mr.  Graham  being  sworn  gave  the  following  testimony  : 
A  short  time  after  the  arrival  of  Captain  Gaines  at  New 
Orleans,  I  was  told  that  he  had  subpoenas  for  witnesses, 
and  one  for  myself;  that  there  was  a  public  vessel  that 
would  carry  us  to  Richmond.  I  then  waited  on  General 
Wilkinson  to  know  whether  J  could  be  accommodated  in 
19 


29o  TRIAL     OF    AARON    BURR. 

that  vessel?  My  health  was  bad  at  that  time;  General 
Wilkinson  agreed  that  I  should  ;  and  then  said  that  he  un- 
derstood that  there  were  several  witnesses  in  town,  some 
of  whom  were  unwilling,  others  unable  to  come  round  ; 
and  asked  me  if  I  knew  any  legal  means  or  process,  by 
which  those  who  were  unwilling  could  be  compelled  to 
come?  I  told  him  I  did  not  know,  but  I  supposed  the 
federal  judge  could  inform  him.  As  there  was  a  misun- 
derstanding between  the  general  and  the  judge,  I  offered 
to  ask  the  judge  myself,  whether  there  were  such  process  ; 
and  I  did  so.  At  this,  or  some  subsequent  time,  General 
Wilkinson  told  me  to  ask  the  judge,  whether  there  were 
any  impropriety  in  advancing  money  to  the  witnesses, 
and  to  what  amount?  The  judge  said,  that  so  far  from 
being  improper,  the  witnesses  had  a  right  to  demand  it. 
The  judge  said,  in  answer  to  the  other  question,  that  if 
the  witness  refused  to  enter  into  recognizance,  or  to  an- 
swer such  questions  as  would  satisfy  him  of  the  material- 
ity or  relevancy  from  the  law  (which  he  showed  me),  he 
would  be  authorized  to  send  such  witness  round  under 
the  care  of  the  district  marshal.  He  saw  a  few  days  after, 
in  an  outer  room  at  the  judge's,  Mr.  Knox  talking  with 
Mr.  Keene,  a  lawyer;  some  short  time  after,  when  these 
gentlemen  came  i^to  the  room,  the  judge  asked  Knox  if 
he  were  then  willing  to  answer  questions,  or  enter  into  rec- 
ognizance ?  He  declined  doing  either.  The  judge  had 
that  clause  of  the  law  before  him.  He  pointed  it  out 
to  Mr.  Keene,  and  a  Mr.  Fort,  who  was  in  the  same  sit- 
uation with  Knox,  and  advised  them  to  do  one  of  the 
two  ;  or  he  should  be  obliged  to  act  rigidly  towards  them  ; 
that  he  was  very  unwilling  to  act  against  them  ;  but  it 
was  his  duty,  and  he  must  do  it.  The  same  gentleman 
had  a  curiosity  to  know  what  questions  they  intended 
to  put  to  him,  and  then  the  printed  interrogatories  were 
shown  to  him.  The  judge  asked  Mr.  Fort  to  answer 
these  interrogatories,  which  he  refused  to  do.  The  judge 
then  sent  for  the  marshal,  and  committed  both  of  them. 
In  the  afternoon  Captain  Fort  gave  security  in  $500 
for  his  appearance  at  Richmond,  and  was  released.  He 
understood  Captain  Fort  was  going  in  the  ship  Amity  to 
New  York,  in  order  to  come  to  Richmond  ;  but  as  Fort 
told  the  witness,  he  could  not  leave  New  Orleans 


MOTION  FOR  AN  ATTACHMENT.          291 

without  injury  to  his  business,  it  was  his  own  opinion, 
that  he  would  not  leave  that  place.  Mr.  Keene  inti- 
mated to  the  judge,  that  he  did  not  appear  as  an  attor- 
ney ;  but  expressed  some  doubt  of  the  correctness  of  the 
proceedings,  and  of  the  power  of  the  judge  to  send  Knox 
round.  The  ship's  stores  were  good,  and  the  persons 
treated  civilly  and  not  restrained.  They  slept  where 
he  did.  They  called  in  at  Havana  on  account  of  bad 
winds,  and  being  chased  close  in  by  a  British  cruiser. 
Captain  Read,  who  commands  the  vessel,  Mr.  Gaines, 
Mr.  Smith  and  himself  went  on  shore  to  procure  fruit, 
&c.  Remained  there  about  three  hours.  His  impression 
was,  that  if  the  gun  had  not  been  fired  from  the  fort,  they 
should  not  have  gone  in.  That  part  of  the  navy  of  the 
United  States,  which  is  at  New  Orleans,  and  was  formerly 
under  the  control  of  the  government,  and  the  officers 
about  New  Orleans,  when  the  country  was  considered  to 
be  in  a  state  of  danger,  was  put  under  the  command  of 
General  Wilkinson.  He  saw  no  guard  on  his  way  to 
New  Orleans.  I  went,  said  Mr.  Graham,  partly  by  land, 
and  partly  by  water.  I  went  down  the  river  with  Cap- 
tain Fort,  who  said,  that  he  was  one  of  a  party,  whose 
object  was  to  go  against  Mexico  ;  of  which  declaration 
he  made  no  secret.  I  do  not  know  by  what  authority 
Fort  was  brought,  before  the  judge,  but  Judge  Hall  said 
he  felt  himself  bound  to  act  under  the  law.  I  advised 
Fort  not  to  oppose  the  judge,  who  was  a  very  deter- 
mined man.  Fort  replied,  that  Mr.  Alexander  said,  that 
the  judge  had  no  right  to  send  him.  The  judge 
and  Mr.  Keene  both  requested  him  to  request  Mr. 
Gaines  to  remove  Knox  out  of  the  prison  to  the 
vessel. 

Lieutenant  Gaines,  upon  being  called  up  again,  said 
he  is  an  officer  of  the  United  States  army:  never  con- 
sulted General  Wilkinson  about  accepting  the  appoint- 
ment of  deputy-marshal.  He  understood  Fort  was 
-included  in  the  same  affidavit  with  Knox.  He  sailed 
from  New  Orleans  in  the  Revenge  ;  saw  General  Wilkin- 
son exercise  no  kind  of  authority  on  the  voyage. 

Mr.  Graham  said,  that  General  Wilkinson  opposed 
their  stopping  at  Havana  for  two  reasons ;  first  that  it 
would  occasion  delay,  and  secondly,  that  his  enemies 


292  TRIAL  OF  AARON  BURR. 

might  charge  it  against  him  as  an  improper  act.  The 
gun  was  fired  from  the  Moro  castle. 

1  understood  that  the  judge  had  requested  Mr.  Gaines 
to  accept  the  deputation.  Gaines  did  not  wish  to  act. 
He  was  urged  by  myself  and  others  to  accept  it ;  and  he 
did  accept  it,  I  believe  from  motives  of  patriotism. 
General  Wilkinson  exercised  no  control  over  the  persons 
on  board ;  and  no  restraint  was  used,  except  what 
has  been  mentioned  with  respect  to  the  witness  Mr. 
Knox. 

After  the  testimony  was  closed,  a  dispute  arose  be- 
tween the  counsel,  which  side  should  begin  the  argument, 
both  parties  claiming  the  right.  After  some  observations 
by  gentlemen  on  both  sides,  it  was  determined,  that  the 
correct  distinction  was,  that  he  who  obtained  a  rule  to 
show  cause  should  close,  and,  of  course  begin  the  argu- 
ment. 

WEDNESDAY,  June  24th,  1807. 

Mr.  Graham  was  called  by  Mr.  Mac  Rae,  and  ques- 
tioned, relative  to  the  state  of  the  public  mind  at  New 
Orleans,  and  whether  great  alarms  were  not  excited  by 
the  conspiracy  ?  Ke  answered,  that  he  had  not  arrived 
at  that  place  till  the  month  of  March,  and  at  that  time  the 
public  mind  was  much  agitated. 

To  a  question  put  by  Mr.  Burr,  whether  General 
Wilkinson  himself  had  not  contributed  to  excite  those 
alarms  by. his  violent  measures?  Mr.  Hay  objected  as 
improper.  Colonel  Burr  insisted  on  the  propriety  of  his 
question. 

The  court  was  of  opinion,  that  the  witness  was  only 
bound  to  answer  such  questions  as  directly  applied  to  the 
subject  before  them. 

Mr.  Graham  said,  tljat  there  was  a  considerable  por- 
tion of  the  people  at  New  Orleans,  who  believed,  that 
there  was  another  portion  unfriendly  to  the  government. 
He  did  not  know  the  measures  pursued  by  the  execu- 
tive, at  New  Orleans.  He  was  then  interrogated  as  to 
the  post-offices  being  robbed  of  letters.  «He  did  not 
recollect  that  General  Wilkinson  particularly  informed 
him  how  letters  of  information  were  received  by  him  ; 


MOTION    FOR    AN    ATTACHMENT.         293 

only  he  observed,  concerning  a  letter  partly  in  cypher, 
that  he  had  received  it  from  a  house  at  New  Orleans 
[which  Mr.  Graham  named  :  but  it  is  not  inserted,  as  he 
was  not  distinctly  heard]  ;  that  the  practice  of  opening 
letters,  if  it  existed  at  all,  had  ceased,  when  he  arrived  at 
New  Orleans  ;  that  General  Wilkinson  showed  him  three 
or  four  letters.  He  did  not  know  how  those  letters  were 
taken  from  the  post-office,  but  it  was  generally  said  at 
New  Orleans,  that  the  post-master  there  had  given  him 
those  letters. 

Mr.  Burr  asked  him,  whether  a  considerable  number 
of  letters,  directed  to  himself,  or  to  others,  had  not  been 
taken  from  the  post-office  there  ?  He  answered,  that  he 
knew  not ;  but  there  was  an  impression  on  his  mind,  that 
letters  were  improperly  taken  from  the  post-office ; 
whether  by  General  Wilkinson  or  not,  he  knew  not.  He 
rather  thought  not. 

Mr.  Martin. — Did  you  not  understand  that  General 
Wilkinson  had  placed  guards  on  the  river,  and  on  the 
roads,  to  stop  travelers  and  passengers  from  passing? 

Mr.  Graham. — I  did  understand  that  he  had  placed 
guards  at  two  points,  near  New  Orleans,  for  the  purpose 
of  arresting  suspected  characters.  I  had  understood  also, 
that  certain  persons  had  been  seized. 

Mr.  Martin. — Did  General  Wilkinson  never  tell  you 
how  he  got  those  letters?  Mr.  Graham. —  He  did  not. 

Captain  Murray  was  then  called  and  sworn. 

Being  interrogated  by  Mr.  Burr,  he  stated  that  he  was 
stationed  at  Ville  Grove,  two  miles  above  New  Orleans. 
His  orders  from  Governor  Claiborne  were  to  stop  boats 
coming  down  the  river,  and  examine  them  ;  to  examine 
papers,  but  break  no  seal :  but  that,  from  his  orders  he 
would  have  deemed  it  his  duty  to  have  transmitted  letters 
addressed  to  suspicious  persons  to  the  executive  at  New 
Orleans. 

Mr.  Burr. — Would  you  have  obeyed  the  governor, 
since,  as  an  officer,  you  are  strictly  bound  to  obey  Gene- 
ral Wilkinson. 

Captain  Murray. — Ye«,  I    should.     The    orders    from 
Governor   Claiborne    originated    with,  and   always  came 
through  General  Wilkinson. 
,    Mr.  Edmund  Randolph  then  addressed  the  court  thus: 


294  TRIAL  OF  AARON  BURR. 

May  it  please  your  honors  :  The  motion  which  we  so 
often  attempted  to  bring  forward,  I  hope,  will  now  be 
submitted  and  freely  argued  :  the  motion  to  attach  Gene- 
ral Wilkinson,  for  endeavoring  to  prevent  the  free  course 
of  testimony.  The  immediate  object  will  be  to  call  on  him 
to  answer  interrogatories,  whether  improper  practices  have 
not  been  used  by  him  :  the  ulterior  object  will  be  deter- 
mined afterwards.  I  believe  that,  in  cases  of  this  kind, 
where  strong  suspicions  exist,  the  attachment  must  go-, 
because  it  is  in  the  power  of  the  party  charged  to  purge 
himself  on  oath.  If  he  refuse,  it  arises  from  a  conscious- 
ness of  his  own  guilt.  His  innocence  is  first  to  be  pre- 
sumed, and  everything  is  in  his  own  power.  If  he  omit 
to  clear  himself,  the  court  will  take  measures  for  enforc- 
ing obedience  to  the  power  and  dignity  of  this  tribunal. 

Give  me  leave  to  open  this  case  as  it  now  appears,  from 
the  testimony  before  the  court.  It  no  longer  depends, 
as  at  first  insinuated,  on  the  evidence  of  James  Knox, 
who  has  been  censured  for  enmity  against  General  Wil- 
kinson. It  has  been  enlarged  and  enforced  by  the  testi- 
mony of  two  very  respectable  gentlemen,  brought  for- 
ward by  General  Wilkinson  himself. 

Sir,  if  we  were  to  have  the  same  command  or  range  61 
persons  that  the  counsel  for  the  prosecution  have,  we 
should  lay  before  you  a  history  of  this  illegal  and  oppres- 
sive proceeding,  far  more  detailed,  and  far  more  strong, 
than  is  yet  in  our  power.  I  judge,  that  this  would  be  our 
ability,  when  you  hear  so  much  from  his  own  witnesses, 
who  are  supposed  by  him  the  best  to  understand  the  cir- 
cumstances which  can  operate  in  his  favor.  And  here 
give  me  leave  to  pay  a  tribute  of  applause  (which  I  shall 
always  be  ready  to  avow)  to  the  frankness  and  manliness 
of  those  gentlemen,  whom  he  has  introduced,  in  candidly 
and  ingenuously  stating  all  the  circumstances  known  to 
them.  That  confidence  which  I  had  before  in  the  evi- 
dence of  James  Knox  is  greatly  strengthened  and  con- 
firmed by  the  strong  and  respectable  testimony  of  Lieu- 
tenant Gaines  and  Mr.  Graham.  Mr.  Gaines,  a  lieuten- 
ant in  the  army,  was,  by  words,  made  a  deputy  marshal. 
Sir,  I  feel  a  repugnance  at  the  idea.  I  feel  a  repugnance 
at  this  germ  of  an  alliance  between  the  civil  and  military 
authority,  when  the  civil  wants  not  the  aid  of  the  military 


MOTION  FOR   AN  ATTACHMENT.        295 

arm.  I  am  not  sufficiently  versed  in  the  policy  of  mixing 
offices  of  such  opposite  descriptions  together,  without 
necessity.  I  hope  I  shall  never  have  occasion  to  be  ac- 
quainted with  the  extraordinary  and  dangerous  policy  of 
joining  together  such  offices. 

That  a  man,  owing  obedience  only  to  a  superior  milita- 
ry commander,  is  to  be  placed  in  a  civil  capacity,  for.  the 
singlepurpose  of  catching  and  detainingunfbrtunatemen, 
who  may  happen  to  be  witnesses  in  a  particular  cause,  is 
a  dangerous  innovation,  and  ought  not  to  be  tolerated. 
Sii,  I  do  not  pretend  to  recollect  the  purport  of  that  paper, 
by  the  authority  of  which  Lieutenant  Gaines  acted  as 
deputy  marshal ;  but  I  understand,  that  its  principal  ob- 
ject was,  to  enable  him  to  transport  Mr.  Knox  from  New 
Orleans  to  Richmond.  It  is  immaterial,  at  this  time  and 
place,  to  enter  into  a  specification  of  his  power  thus  con- 
ferred, or  attempted  to  be  conferred.  It  is  sufficient  that 
a  military  man  is  created  a  deputy-marshal  ;  not  for  the 
general  purposes  of  the  office  of  marshal,  but  for  the  sin- 
gle purpose  of  proceeding  and  carrying  by  force,  to  Rich- 
mond, a  man  apprehended  as  a  witness  in  New  Orleans. 
This  outrage,  whether  it  be  called  civil  or  military,  was 
committed  after  Mr.  Knox  was  regularly  summoned. 
The  inference  that  I  draw  from  this,  is,  that  something 
of  a  military  nature  was  intended  in  order  to  effect  the 
object  in  view  by  compulsion. 

Can  you  believe,  that  there  were  so  few  men  of  integ- 
rity in  New  Orleans  (I  believe  it  abounds  with  such)  that 
no  man  could  be  found  by  whom  this  business  could  have 
been  executed,  without  this  oppressive  union  of  military 
power  with  civil  authority?  It  can  not  then  be  justified  by 
the  plea  of  necessity.  It  was  as  unnecessary  as  it  was  unpre- 
cedented and  illegal;  and  whether  this  appointment  was 
suggested  by  the  judge  (who  seems  to  have  been  infected 
with  the  mania  excited  by  Wilkinson),  or  whether  it  pro- 
ceeded from  Wilkinson  himself,  it  was  equally  improper. 
He  wasappointed  to  an  office  without  the  possibility  of  em- 
ployment ;  the  subpoena  had  been  served,  and  he  had 
nothing  to  do  as  marshal.  Every  step  taken,  after  the 
subpoena  was  served,  was  military,  coercive,  and  violent : 
nothing  conformable  to  law.  Consider  the  whole  testi- 
mony, and  say,  once  for  all,  whether  it  were  not  a  con- 


296  TRIAL   OF  AARON  BURR 

trivance  to  effect  their  favorite  object,  in  pretended 
observance,  but  in  real  evasion,  of  the  law?  It  is  evi- 
dent that,  in  truth  and  in  law,  Mr.  Gaines  was  no  deputy 
marshal.  He  was  commanded  by  the  act  of  congress, 
to  give  bond  and  security  before  he  entered  on  the 
duties  of  his  orifice;  nay,  more,  he  must  qualify  and  be 
duly  sworn  in  the  same  manner  that  the  marshal  himself 
is  sworn  ;  and  till  he  does  comply  with  these  requisites, 
he  has  no  more  power  as  a  marshal,  than  any  man  whom 
I  now  behold  in  this  assembly.  [Here  Mr.  Gaines  being 
called  for  that  purpose,  showed  his  deputation.]  But  it 
may  be  said  that  there  was  no  occasion  to  give  bond  and 
security  because  he  was  only  appointed  for  the  special 
purpose  of  removing  a  man  from  New  Orleans  to  Rich- 
mond. But  before  he  could  be  a  marshal  at  all,  these 
requisites  must  be  complied  with.  He  would  not  other- 
wise be  a  marshal  for  any  purpose.  Without  doing  so,  he 
was  wholly  unauthorized,  and  entitled  to  no  respect  as  an 
officer.  He  had  no  civil  authority  or  character;  he  had 
no  right  to  take  upon  himself  the  office  of  sub-marshal. 
Mr.  Gaines  frankly  and  candidly  tells  you,  that  he  was 
not  absolved  from  military  duty ;  but  to  comply  with 
the  wishes  of  the  general,  he  was  obliged,  or  found  it 
convenient,  to  act  thus  towards  James  Knox  ;  and  he  has 
said,  that  if  commanded  by  the  general,  he  would  have 
put  him  in  irons.  The  military  genius  prevailed  over 
the  civil  wherever  it  was  seen.  But  he  deemed  it 
necessary  to  make  use  of  the  judge  to  execute  his  plan. 
This  man,  without  any  authority,  by  the  orders  of  his 
superior  officer,  and  to  please  him,  goes  to  Judge  Hall ; 
he  has  an  interview  with  him  :  "  How  am  I  to  get  this 
refractory  man  to  Richmond?"  "You  can  not  do  it 
without  an  affidavit."  "  How  must  this  affidavit  be 
procured?"  The  transaction  furnishes  the  answer.  It 
is  procured  by  a  communication  through  Mr.  Gaines  to 
General  Wilkinson,  that  this  step  was  necessary  for 
this  particular  purpose.  The  affidavit  is  made  by  Gen- 
eral Wilkinson,  knowing  that  its  object  was  to  effect  the 
transportation  of  James  Knox  to  Richmond.  He  him- 
self caused  his  own  affidavit  to  be  taken.  He  tells 
Captain  Gaines,  a  military  officer  under  his  command,  to 
tinnsport  him.  He  willfully,  then,  contributed  to  do  an 


MO  TION  FOR  AN  A  TTA  CHMENT.  2  g  7 

act  which  he  knew  to  be  illegal.  Do  not  let  me.be  told, 
that  it  was  the  act  of  the  judge.  The  case  will  not  be 
amended  by  that  refuge,  for  the  judge  himself,  as  is  mani- 
fested by  all  the  circumstances,  was  stimulated  by  Wilkin- 
son, and  greatly  transcended  the  limits  of  the  law,  to  effect 
the  performance  of  an  act  to  which  Wilkinson  was  not 
only  contributing,  but  of  which  he  was  prime  mover. 
He  demanded  bail  and  bond  security  that  Knox  would 
go  twelve  hundred  miles.  Sir,  if  conduct  Jike  this  in  a 
judge  is  to  be  tolerated,  there  is  an  end  of  all  law  and 
justice.  He  could  not  but  know  that  there  was  no  law 
authorizing  such  an  act  of  oppression.  What,  sir,  shall 
he,  from  his  own  arbitrary  will,  demand  bond  and  secu- 
rity, in  a  large  sum,  of  a  man  who  is  merely  summoned 
to  appear  at  a  court  as  a  witness,  who  is  willing  to 
attemd,  and  whose  failure  to  appear  legally  subjects  him 
only  to  an  attachment  ?  Shall  he  cast  a  man  thus  sum- 
moned into  jail,  because  he  can  not  give  such  excessive 
security  as  he  tyrannically  demands  ?  They  wished  to 
extort  testimony  from  this  man  by  intimidation  and 
violence;  they  required  bail  of  him,  though  a  stranger 
without  property,  in  five  or  six  thousand  dollars,  in  a 
case  where  they  had  no  right  to  require  any  security,  or 
to  molest  him  at  all.  Was  this  man  capable  of  giving 
bail  in  so  excessive  a  sum  ?  This  judicial  outrage  of  de- 
manding bail  where  none  was  demandable  ;  of  casting 
the  man  into  prison,  because  this  illegal  condition  was 
not,  and  could  not  be  complied  with,  and  this  for  the 
purpose  of  extorting  evidence,  is  an  offense  of  unusual 
enormity.  What  a  mass  of  destruction  to  the  rights  and 
privileges  of  private  citizens  is  here  contrived  between 
the  judge  and  General  Wilkinson  ?  The  illegal  design 
can  not  be  accomplished  without  an  affidavit.  Wilkin- 
son voluntarily  makes  this  affidavit,  stating  the  material- 
ity of  the  evidence  of  Knox.  After  it  is  made,  by 
what  means  does  it  come  into  the  hands  of  Judge  Hall  ? 
Who  was  the  carrier  of  it?  Not  Lieutenant  Gaines, 
but  General  Wilkinson  himself.  And  for  what  purpose? 
To  enable  them  to  transport  James  Knox  to  Richmond. 
And  who  is  the  executioner  of  this  order?  This  trans- 
portation is  to  be  effected,  not  by  a  regular  marshal  or 
civil  officer,  but  by  an  officer  under  his  command,  unless 


298  TRIAL     OF    AARON    BURR. 

Knox  gives  bond  and  security,  in  a  strange  country,  to  an 
amount  which  he  could  not  possibly  command  ;  and, 
moreover,  this  is  to  be  executed  on  a  man  already  in 
jail  for  the  sin  of  being  a  witness  !  Thus  General  Wil- 
kinson has  incorporated  himself  with  all  Hall's  acts. 

But  Wilkinson  connects  himself  further  in  these  pro- 
ceediggs,  which  are  all  illegal  from  beginning  to  end. 
Stimulated  by  Wilkinson's  oath,  his  agents  put,  Knox  in 
confinement  ;t  and  Knox  was  removed  by  a  military 
order,  from  an  officer  under  the  command  of  Wilkinson, 
on  board  of  a  vessel  under  the  control  of  this  comman- 
der-in-chief ;  so  that  the  outrage  against  Knox  was  com- 
menced by  his  imprisonment  on  shore,  and  consummated 
by  his  imprisonment  on  sea;  and  both  contrived  by  Wil- 
kinson. The  same  commander-in-chief  has  drawn  money 
from  the  military  chest,  for  the  purpose  of  aiding  him  in 
these  unlawful  transactions.  Sir,  you  can  not  view  any 
part  of  this  case,  without  viewing  the  same  military 
features  strongly  marked;  General  Wilkinson  as  the 
principal  actor,  as  a  military  character,  and  «for  military 
purposes.  Wilkinson  most  assuredly  considered  himself 
as  possessing  the  most  positive  power  over  this  vessel : 
because  he  authorized  Captain  Gaines  to  offer  him  a  pas- 
sage in  the  vessel ;  and  how  could  he  give  such  an  au- 
thority, if  Read  was  not  under  his  command  ?  Wilkin- 
son was  the  effective  commander  of  this  vessel.  Observe, 
sir,  if  you  please,  the  order  which  Gaines  gives.  It  is  a 
written  order,  in  a  military  style,  delivered  to  Sergeant 
Dunbaugh,  commanding  him  to  take  this  man  into  cus- 
tody. He  directs  him  not  as  a  deputy  marshal,  but  as 
Captain  Gaines,  to  take  possession  of  Knox  ;  and  he  ad- 
dresses him,  not  as  an  individual  obliged  to  obey  a  mar- 
shal, but  as  Sergeant  Dunbaugh,  bound  to  obey  him  as 
his  military  superior  officer ;  and  no  permission  is  given 
to  Knox  to  go  on  shore,  but  through  Wilkinson.  The 
spirit  of  Wilkinson  appears  through  the  whole  of  this 
business.  The  genius  of  Wilkinson  is  apparent  in  every 
stage  of  the  transaction.  I  was  at  no  loss  at  all,  when  I 
saw  the  letter  of  the  attorney-general  directing  so  many 
subpoenas  to  be  put  into  Wilkinson's  hands,  to  perceive  the 
object.  What  authority  could  the  attorney-general  con- 
fer on  Wilkinson?  I  had  no  hesitation,  on  reading  this 


MOTION    FOR     AN    ATTACHMENT.        299 

letter,  to  conclude  that  the  intention  was,  to  enable  him 
to  effect  by  force,  the  removal  of  such  persons  as  he  could 
not  persuade  to  come, voluntarily.  I  refer  to  the  fact :  it 
is  acknowledged  and  can  not  be  denied.  [Here  Mr.  Hay 
interrupted  him  ;  he  insisted  that  the  letter  should  be 
read,  and  that  it  would  show  that  Mr.  Randolph  was  in- 
correct.] Mr.  Randolph  waived  the  reading  of  the  letter ; 
but  appealed  to  the  facts,  and  insisted  that  his  inference 
was  justified  by  the  testimony.  He  then  proceeded.  Is 
it  not  singular,  that  subpoenas  in  a  civil  case,  should  be 
confided  to  the  military  commander-in-chief  ?  Did  it 
not  seem  to  tell  him,  that  he  was  to  use  these  subpoenas 
with  some  degree  of  authority,  and  did  he  not  at  least  ar- 
rogate that  authority  to  himself?  Why  did  General 
Wilkinson  mention  to  Mr.  Gaines  the  necessity  of  sum- 
moning Mr.  Knox,  in  recommending  to  him  to  find  out 
who  were  witnesses?  Who,  I  again  ask,  carried  the  affi- 
davit of  Wilkinson  to  Judge  Hall  ?  Mr.  Gaines  has  stated 
that  he  dicl  not ;  who,  then,  carried  it  but  General  Wilkin- 
son himself?  Does  not  this  still  go  to  show,  that  there 
was  not  the  minutest  thing  that  General  Wilkinson  would 
omit  for  this  purpose?  ,  There  was  a  military  temper,  a 
military  spirit  displayed  by  General  Wilkinson  through- 
out the  whole  transaction.  Why  did  he  consult  an  attor- 
ney? Was  he  a  marshal  ?  Was  military  money  put  into 
his  hands  to  employ  a  lawyer?  No,  sir,  but  because  he 
viewed  the  subject  in  a  military  form.  Gaines  tells  us 
that  Wilkinson  must  have  known  that  Knox  was  carried 
on  board  unwillingly;  yet,  notwithstanding  he  knew  this 
and  that  Knox  was  anxious  to  come  on  shore,  he  suffers 
him  to  remain  in  the  pinnace  of  a  ship — in  the  hold  ;  per- 
haps to  mess  with  degraded  people;  torn  from  his  family 
and  his  private  concerns,  without  the  common  comforts 
usually  prepared  for  a  sea  voyage :  an  exile  from  his 
country,  without  money,  without  friends.  Mr.  Gaines 
states,  that  he,  Wilkinson,  had  observed  to  him,  that 
there  were  some  unwilling  witnesses  (such  as  he  must 
coerce  by  military  rigor) ;  and  Mr.  Graham  tells  you,  that 
he  consulted  him  on  the  mean*  of  sending  forward  un- 
willing witnesses.  See,  then,  the  solicitude  of  Mr.  Wil- 
kinson, through  the  .whole  of  this  business  !  He  began  ; 
he  consumated  everything.  Dunbaugh  was  applied  to, 


300  TRIAL     OF    AARON    BURR. 

for  the  liberty  of  Knox,  and  it  was  refused.  But  Wilkin- 
son took  his  parol  of  honor  from  him  at  Hampton  ;  none 
but  Wilkinson  could  give  him  liberty.  We  have  seen 
him  in  the  character  of  a  military  tyranj:.  We  shall  now 
find  him  using  the  blandishments  of  a  courtier.  He  is 
particularly  complaisant  and  friendly ;  offering  him 
money,  and  any  services  in  his  power,  in  order  to  relieve 
his  wants.  At  one  time  he  asks  him,  "  Are  you  not  afraid 
of  seeing  me,  after  what  has  happened  to  many  ?"  At 
another,  he  asks  him  in  a  familiar  way,  if  he  were  not  a 
freemason  ;  and  thus  profaned  that  institution,  by  at- 
tempting to  impose  on  him  the  seal  of  secrecy.  Terror 
was  used  to  frighten  him  ;  and  when  he  was  found  too 
firm  and  stubborn,  cajoling  and  complacency  were  used. 
The  means  of  operation  were  changed  as  he  found  it  ex- 
pedient. It  is  immaterial  in  what  order  these  things 
took  place.  It  is  certain  that  they  all  took  place.  Vari- 
ous passions  played  in  his  breast  ;  sometimes  softness, 
sometimes  severity. 

Sir,  I  beg  to  deduce  from  these  facts,  this  conclusion  : 
that  General  Wilkinson  caused  the  arrest  and  imprison- 
ment of  Mr.  Knox ;  that  Wilkinson  executed  it ;  and 
that  it  was  done  for  the  purpose  of  compelling  Knox  to 
give  testimony.  Though  he  was  privileged  as  a  witness, 
Wilkinson,  by  his  own  authority,  had  him  again  impris- 
oned on  board  the  vessel :  and  this,  also,  for  the  same 
purpose  of  compelling  him  to  give  testimony,  and  of  in- 
terrupting the  free  course  of  evidence.  These  are  the 
principal  facts  upon  which  an  attachment  ought  to  issue 
against  Generel  Wilkinson.  Sir,  I  will  not  stop  to  look 
at  the  insinuations  against  Knox.  He  had  been  sum- 
moned by  the  United  States,  and  was  waiting  to 
arrange  his  private  affairs,  to  enable  him  to  depart  for 
this  place.  The  account  which  Knox  has  given,  is  just, 
candid,  and  unexceptionable  ;  and  shows  that  he  was 
very  much  disposed  to  give  his  evidence.  It  is  truly  a  hard 
case,  that  he  should  be  solicited  by  the  United  States  to 
come  as  a  witness,  and  when  he  does  come,  that  his  char- 
acter should  be  assailed  as  participating  of  something 
criminal.  Facts,  then,  are  fixed  as  to  General  Wilkinson. 
But  it  may  be  asked  what  motives  General  Wilkinson 
could  have  for  his  conduct  ?  It  was  said  the  other  day, 


MOTION    FOR    AN    ATTACHMENT.      301 

that  he  was  the  pivot  of  the  prosecution.  The  prosecu- 
tion was  not  hazarded  before  his  arrival :  not  a  single 
witness  was  sent  to  the  grand  jury  till  he  came.  The 
grand  jury  had  to  wait  several  weeks  for  his  arrival.  We 
have  already  had  occasion  to  notice  the  stake  which 
General  Wilkinson  had  in  the  issue  of  this  prosecution. 
Sir,  the  truth  is, and  it  can  not  be  concealed,  that  the  names 
of  Wilkinson  and  Burr  are  antipodes  to  each  other  by  the 
act  of  Wilkinson  himself.  Wilkinson  declares,  and  the 
fact  is.  that  he  never  will  regain  his  meridian  brightness, 
unless  he  can  throw  Mr.  Burr  into  darkness.  It  is  his  duty 
to  take  care,  that  like  some  mock  god  he  fall  down  from 
his  imaginary  glory,  tumbling  among  ruins  and  into  a 
chaos  of  rubbish,  which  he  himself  has  created. 

Thus  we  have  established  what  Wilkinson  has  done,  and 
what  were  his 'motives.  Let  me  now  show,  that  these 
facts  do  amount  to  a  contempt  of  the  court.  From  the 
authorities  which  I  will  read,  it  will  appear  that  no  force 
or  violence  should  ever  be  unnecessarily  used,  in  making 
arrests  :  and  of  course,  every  species  of  unnecessary  force 
in  compelling  witnesses  to  attend,  to  give  depositions, 
or  in  executing  any  other  process,  amounts  to  a  contempt 
of  the  court.  Hawkins,  in  book  2,  section  2,  lays  down  this 
general  principle,  that  "  it  seems  clear  from  the  general 
reason  of  the  law,  that  all  courts  of  record  have  a  discre- 
tionary power  over  all  abuses  by  their  own  officers  in  the 
administration  or  execution  of  justice."  And  in  section  3, 
he  lays  down  these  general  principles,  that  "  it  is  every 
day's  practice  to  grant  attachments  for  misdemeanors  of 
this  kind  ;  as,  for  using  needless  force,  violence,  and  terror, 
in  making  an  arrest ;  or  by  breaking  open  doors,  where  by 
law  it  is  not  justifiable,  and  there  is  no  plausible  excuse 
for  doing  it ;  or  treating  the  persons  arrested  basely  and 
inhumanly,  or  keeping  them  in  custody,  till  they  pay 
money  ;  or  making  an  arrest  without  due  authority." 
And  in  section  12  of  the  same  book,  after  having 
spoken  of  punishing  by  attachment  the  misconduct  of 
attorneys,  he  says  :  "  Where  the  court  may  proceed  in 
the  manner  above  mentioned,  against  other  officers  of 
the  court,  there  being  scarcely  anything  of  this  kind  to  be 
met  with  in  the  books,  I  shall  only  observe,  that  it  seems 
clear  from  the  general  reason  of  the  law,  which  gives  all 


302  TRIAL     OF  f AARON    BURR. 

courts  of  record  a  kind  of  discretionary  power  in  the  gov- 
ernment of  their  own  officers,  that  any  such  court  may 
proceed  in  such  manner  [he  is  speaking  of  the  process 
of  attachment]  against  any  such  officer,  not  only  for 
refusing  to  execute  its  commands,  or  for  executing  them 
irregularly,  remissly,  or  oppressively;  but  also  for  all 
kinds  of  oppression  or  injustice  done  by  them  in  the  ex- 
ecution of  their  offices,  or  by  color  of  them."  And,  in 
section  41,  of  same  book,  he  says,  that  "  making  use  of 
the  process  of  the  court  in  a  vexatious  manner  "—and. 
in  section  42,  that  "  using  it  to  serve  the  purpose  of  op- 
pression or  injustice,  are  both  punishable  by  an  attach- 
ment." Here,  then,  is  a  universal  principle,  that  for  all 
kinds  of  oppression  or  injustice,  done  by  the  officers  of 
courts  of  justice,  either  in  the  actual  execution  of  their 
offices  or  by  color  of  them,  they  may  be  pro'ceeded  against 
by  attachment.  If  we  do  not  produce  a  case  in  point,  it 
is  for  the  reason  mentioned  by  Hawkins,  that  there  is 
scarcely  anything  of  this  kind  to  be  met  with  in  the  books, 
and  therefore  the  general  principle  must  be  resorted  to. 
Where  the  public. necessity  and  the  cause  of  justice  re- 
quire that  a  party  should  be  arrested  by  an  officer,  the 
officer  must  use  no  violence  or  terror  in  making  the  ar- 
rest ;  he  must  be  guilty  of  no  act  of  oppression  in  any 
case.  If  no  violence  or  oppression  ought  to  be  used, 
where  an  arrest  is  authorized,  how  much  more  must  the 
law  discountenance  such  violence  and  oppression  towards 
those  who  are  not  liable  to  be  arrested  ?  The  oppression 
practiced  upon  Mr.  Knox  in  this  case,  has  been  by  color 
of  the  process  of  this  court ;  and  those  guilty  of  it  ought, 
on  the  principles  here  laid  down,  to  be  punished  for  it. 
This  is  a  rftore  violent  case  than  any  mentioned  by  this 
author.  What  would  Hawkins  have  said  to  this  case, 
where  we  see  a  man,  who  was  regularly  summoned  as  a 
witness,  to  attend  a  court  of  justice,  seized  at  New  Or- 
leans, upon  the  affidavit  of  a  military  officer,  dragged 
before  a  person  who  is  called  amagistrste,  for  the  express 
purpose  of  being  held  to  bail:  required  by  this  magis- 
trate to  give  bail  for  his  appearance  next  day,  in  an  enor- 
mous sum,  in  a  place  where  he  is  unknown  ;  then  thrown 
into  jail  and  confined  for  three  days,  in  a  sultry  climate, 
among  negroes  and  felons ;  then  taken  out  by  a  military 


MOTION    FOR     AN    ATTACHMENT.      303 

authority,  placed  under  a  military  guard,  and  by  a  man 
who,  though  a  military  officer,  had  the  name  of  a  deputy 
marshal  conferred  on  him,  for  the  purpose  of  executing 
this  tyrannical  act,  and  that-  gentleman  himself  acting  in 
this  double  capacity  under  the  authority  of  General  Wil- 
.kinson  ;  then  forced  on  board  a  vessel,  and  continued  under 
restraint,  till  he  gets  within  a  few  miles  of  Richmond  ;  and 
all  this,  without  so  much  as  the  pretense  of  any  cause  or 
crime,  and  under  the  control  of  Wilkinson.  I  ask,  what 
would  Hawkins,  or  other  eminent  English  writers,  have 
said  of  a  case  of  such  flagrant  oppression  ?  Is  not  this 
the  use  of  needless  force,  violence,  and  terror  ?  Was  not 
this  an  act  of  inhuman  treatment  to  Knox  ?  Was  not  the 
process  of  this  court  abused,  for  the  purpose  of  oppres- 
sion and  injustice?  Was  not  vexation  practiced  under 
qplor  of  this  process?  And  do  not  the  offenses  com- 
mitted, come  completely  within  the  definitions  of 
Hawkins,  as  punishable  by  attachment  ?  Is  not  this 
arbitrary  and  illegal  arrest,  contrary  to  all  practice  and 
experience,  in  cases  of  witnesses  in  that  country  ?  There 
has  been  no  example  in  this  country,  of  confining  a  man 
for  the  purpose  of  compelling  him  to  give  testimony. 
He  only  enters  into  a  recognizance  to  appear  in  court  to 
give  testimony.  No  compulsion  or  influence  is  to  be  ex- 
ercised over  a  witness;  it  is -forbidden  by  the  law.  All 
temptation  to  perjury  is  taken  away,  as  neither  threats 
nor  promises,  rewards  nor  punishments  are  permitted  by 
law.  In  the  examination  of  a  witness,  no  force  is  to  be 
used.  On  the  contrary,  when  a  witness  has  been  sum- 
moned, and  has  not  failed  to  attend,  there  is  no  pre- 
sumption or  anticipation,  that  he  will  not  obey  the 
summons  ;  there  is,  consequently,  no  compulsion  to  be 
exercised  on  him.  Voluntary  affidavits  can  not  be  re- 
strained. They  are  not  free  from  exception,  because 
they  are  liable  to  be  abused  ;  and  are  not  legal  evidence 
on  a  regular  trial,  because  taken  ex  parte ;  but  many 
people  will  go  before  a  magistrate  of  their  own  accord, 
and  make  such  affidavits.  No  person  can  prevent  it. 
But  when  these  ex  parte  affidavits  are  spoken  of,  it  is 
always  meant  that  they  are  voluntary.  A  forced  affidavit 
never  was  heard  of  before.  Let  us  look  at  the  power 
which  the  marshal  has  had  on  such  occasions.  The  33d 


304  TRIAL    OF  AARON  BURR. 

section  of  the  judicial  act  points  it  out. —  i  vol.  Laws  of 
the  United  States,  p.  73  :  "  If  such  commitment  of  the 
offender,  or  the  witnesses,  shall  be  in  a  district  other  than 
that  in  which  the  offense  is  to  be  tried,  it  shall  be  the 
duty  of  the  judge  of  that  district  where  the  delinquent  is 
imprisoned,  seasonably  to  issue,  and  of  the  marshal  of. 
the  same  district  to  execute  a  warrant  for  the  removal  of 
the  offender,  and  the  witnesses  or  either  of  them,  as  the 
case  may  be,  to  the  district  where  the  trial  is  to  be  had." 
What-  is  the  power  which  the  magistrate  has  by  this 
clause?  It  is  unnecessary  to  inquire  into  the  extent  of 
it.  He  had  no  such  power  as  is  here  contended  for. 
The  party  accused  was  not  committed  by  him,  nor  brought 
before  him,  nor  imprisoned  in  his  district.  He  had, 
therefore,  no  right  at  all  to  confine  the  witness  for  the 
purpose  of  transporting  him  to  the  district  where  the 
trial  was  to  be  had ;  and  yet,  that  was  done  by  Mr.  Hall, 
notwithstanding  the  plain  and  explicit  terms  of  the  law 
that  the  duty  of  "the  judge  of  the  district,  where  the 
delinquent  is  imprisoned,  is  to  issue  a  warrant,  and  of 
the  marshal  of  the  same  district  to  execute  it,  for  the  re- 
moval," &c.  This  Judge  Hall  well  knew,  that  the  ac- 
cused was  not  imprisoned  in  his  district  ;  that  he  had  not 
committed  him  ;  and  that,  therefore,  under  this  law,  he 
had  no  right  to  issue  such  a  warrant  ;  and  as  he  could 
not  lawfully  grant,  so  the  marshal  could  not  lawfully 
execute,  such  a  warrant.  The  act  was,  therefore,  unlaw- 
ful, and  every  person  knowingly  and  actively  concerned 
in  it,  or  otherwise  contributing  to  it,  was  particpating 
in  the  offense,  and  guilty  of  a  contempt  of  the  court. 

I  am  astonished  at  the  boldness  of  this  judge,  in  sup- 
porting the  arbitrary  military  order  of  the  general ;  for 
such  it  assuredly  was.  Affidavits,  sir,  they  called  for  as 
gluttons;  their  greediness  is  never  to  be  satisfied.  But 
why  did  they  ask  for  them  ?  What  was  their  object  in 
so  doing  ?  Was  it  not  to  entangle  their  prisoner,  by 
compelling  him  to  make  an  affidavit,  which  he  could  not 
afterwards  retract  ?  The  witness  once  committed  by  his 
oath,  struggles  to  adhere  to  what  he  has  sworn  to.  The 
printed  interrogatories  pin  him  down  to  a  particular 
point.  Whatever  may  be  his  wishes  or  feelings,  he  must 
adhere  to  them.  Great  strength  and  presence  of  mind, 
are  not  always  to  be  expected  in  a  person,  placed  as  Mr. 


MOTION    FOR    AN    ATTACHMENT.       305 

Knox  was  at  New  Orleans.  That  strength  of  mind, 
which  will  adhere  to  the  exact  truth  under  every  pres- 
sure and  difficulty,  is  not  to  be  found  in  every  man.  The 
witness  is  not  to  be  always  at  hand  to  explain  his  affi- 
davit. Mr.  Knox  was  in  a  strange  country,  friendless,  in 
want  of  everything,  and  subject  to  the  military  despotism 
of  General  Wilkinson.  From  his  situation  it  might  be 
supposed,  that  the  affidavit  which  he  would  give  would 
be  different  from  what  it  would  be,  if  given  in  a  court  of 
justice,  where  law  and  order  are  preserved,  and  testi- 
mony is  not  extorted  at  the  point  of  the  bayonet.  This 
was  the  object  of  the  printed  interrogatories;  and  of  ob- 
taining the  affidavit  of  Mr.  Knox:  for  they  calculated, 
that  a  regard  for  his  own  reputation  would  prevent  him 
from  contradicting  any  fact  to  which  he'  had  previously 
deposed.  He  might  hesitate  between  the  love  of  truth, 
and  a  regard  for  his  character.  He  might  greatly  prefer 
a  candid  detail  of  facts  ;  when  by  showing  him  his  former 
testimony,  and  reminding  him  that  want  of  uniformity  in 
his  evidence  would  expose  him  to  public  contempt,  his 
real  regard  to  the  truth  would  be  shaken,  so  as  to  make 
him  confirm  his  former  extorted  statement.  Sir,  there  is 
not  a  more  dangerous  power,  that  can  be  exercised  on 
the  part  of  the  government,  than  that  of  forcing  a  man 
a  man  to  give  an  affidavit  taken  ex  parte,  by  a  man  who 
will  not  be  careful  to  state  facts  as  intended  by  the  wit- 
ness, but  as  tending  to  establish  the  object,  or  to  favor 
the  views  of  those  who  take  it.  He  may  wish  to  retract ; 
but  when  his  deposition  is  brought  before  his  eyes,  he 
will  be  unable.  Sir,  what  must  be  the  force  of  that 
man's  mind,  who,  unskilled  in  courts,  unskilled  in  the 
world,  can  give  a  correct  statement  of  facts,  when  con- 
fronted in  court  with  his  declarations  before  committed 
to  p^per,  and  can  firmly  explain  and  give  a  narration  dif- 
ferent from  it?  Who  can  be  safe,  if  proceedings  like  these 
should  be  tolerated  ?  We  are  told,  that  the  bill  of  rights 
gives  to  the  accused  the  right  of  being  confronted  with 
his  accusers  and  witnesses.  That  privilege  would  be 
evaded  in  a  case  like  this.  The  witness  would  be  un- 
equally matched  in  meeting  the  terrors  of  a  slanderous 
world.  Yes,  he  would  be  terrified  by  the  censures  of  an 
inconsiderate  and  defamatory  world.  As  long  as  the  law 
could  not  reach  him,  he  would  not  hesitate  between  ad- 


3o6  TRIAL  OF  AARON  BURR. 

hering  to  his  former  deposition,  and  what  he  would  know 
secretly  within  himself  to  be  correct.  I  trust,  that  what- 
ever may  be  the  fate  of  this  motion,  you  will  not  suffer 
such  encroachment  on  the  privileges  of  witnesses ;  that 
you  will  not  suffer  them  to  be  intimidated,  and  overawed 
by  art  and  dexterity,  from  telling  the  real  truth  ;  or  com- 
pelled to  give  coloring  to  circumstances  contrary  to 
their  meaning.  Sir,  we  can  not  do  better  than  to  adopt  in 
the  law,  the  principle  in  the  Lord's  prayer:  "Lead  us  not 
into  temptation."  This  improper  mode  of  extorting  ex . 
parte  testimony,  will  cause  a  man  to  have  a  conflict  in 
his  own  mind,  between  the  truth  of  which  he  is  conscious, 
and  what  he  may  have  hastily  been  made  to  declare.  We 
contend,  that  neither  the  proceedings  in  a  cause,  nor  the 
witness  should  be  interfered  with,  and  that  to  do  either 
amounts  to  a  contempt  of  the  court.  In  support  of  these 
principles  we  adduce  several  respectable  authorities.— 
5th  Viner's  Abridgment,  pp.  444,  445,446.  In  2d  Atkin, 
469,  it  was  determined  to  be  a  contempt  of  the  court,  to 
publish  a  libel  against  a  p^irty,  or  an  advertisement  re- 
flecting on  the  witnesses  in  a  cause.  And  it  was  ob- 
served by  that  great  chancellor,  Lord  Hardwicke,  "That 
nothing  was  more  incumbent  on  courts  of  justice,  than 
to  preserve  their  proceedings  from  being  misrepresented  ; 
that  nothing  was  of  more  pernicious  consequence,  than 
to  prejudice  the  minds  of  the  public  against  persons  con- 
cerned as  parties-in  a  cause  before  it  was  finally  heard." 
It  was  also  observed  by  him,  that  "  to  abuse  the  parties 
in  a  cause,  or  to  prejudice  mankind  concerning  it  before 
it  was  heard,  was  a  contempt  of  the  court  as  well  as  to 
scandalize  the  court  itself."  And  in  2d  Vezey,  520,  it 
was  adjudged,  that  to  publish  an  advertisement  concern- 
ing proceedings  in  court  was  a  contempt  of  the  court. 
In  the  case  here  referred  to,  a  man  was  committee!  for 
offering  .£500  to  prove  a  fact,  though  the  court  had  al- 
ready decided  the  point.  The  principle  is  the  same  in 
the  case  now  before  the  court  as  in  those  cases.  Why 
is  the  publication  of  a  libel  against  a  party  in  a 
cause  depending  in  a  court  of  justice,  or  of  an  advertise- 
ment reflecting  on  the  witnesses,  deemed  a  contempt  of 
the  court  ?  Why  are  all  publications  to  inflame  or  preju- 
dice the  public  mind  prohibited  ?  Because  they  tend  to 
prejudice  the  public  mind  against  the  parties,  or  the  pro- 


MOTION    FOR    AN    ATTACHMENT.       307 

ceedings  in  the  cause  ;  because  they  obstruct  the  free  ad- 
ministration of  justice;  because  it  may  influence  the 
minds  of  the  jury,  who  may  have  to  try  the  cause,  and, 
consequently,  may  occasion  an  unjust  determination. 
Why  are  such  rules  of  caution  adopted  in  taking  evi- 
dence, but  to  prevent  false  swearing''  Why  are  needless 
force  and  violence  in  making  arrests  forbidden,  and  why 
is  force  towards  a  witness  censured  by  the  law?  Because, 
in  these  cases,  the  mind  is  not  left  free,  though  it  ought 
to  be  free.  Compare  these  cases  with  the  severity  prac- 
ticed in  this  case.  The  minds  of  the  public  may  not  be 
prejudiced,  but  the  mind  of  the  witness  was  not  free  :  he 
was  under  temptation  to  adhere  to  what  he  had  said.  He 
may,  indeed,  not  have  been  under  terror;  perhaps  the 
firmness  of  his  mind  may  have  supported  him,  and  pre- 
vented him  from  being  alarmed:  but  terror  was  rigidly 
employed  by  military  authority.  He  was  arrested  and 
thrown  by  a  military  officer  into  jail ;  was  escorted  by  a 
military  officer ;  forced  on  board  a  military  vessel,  under 
the  command  of  the  same  military  officer,  and  there  fora 
long  time  restrained  by  the  same  military  officer.  If 
there  can  be  a  case  of  greater  enormity  than  this,  it  has 
eluded  my  search.  If  there  were  nothing  in  this  case 
more  than  the  improper  and  unjust  effort  to  obtain  the 
affidavit  of  Mr.  Knox  to  commit  him,  it  would  be  suffi- 
cient to  constitute  a  contempt  of  the  court,  and  would 
be  punishable  by  attachment:  but  it  is  rendered  further 
criminal  by  the  force  used  to  obtain  it.  The  liberty  of 
the  witness  was  invaded.  A  free  citizen  "of  the  United 
States  is  dragged  by  corporeal  force  and  thrown  into 
jail,  for  the  crime  of  being  a  witness;  and  this  within  the 
knowledge,  and  at  the  instigation  of  General  Wilkinson. 
I  hope  I  shall  not  be  told,  that  there  was  an  association 
with  certain  conspiracies,  which  rendered  these  rigorous 
measures  necessary  and  proper.  There  was  no  connec- 
tion proved  between  Knox  and  any  conspiracies.  Why 
insidiously  attack  a  man  as  a  witness,  who  is  to  be  de- 
nounced as  a  criminal?  I  hope  that  no  man.  who  is  not 
guilty  of  a  crime,  will  be  caught  and  cooped  as  a  jail-bird, 
and  compelled  to  receive  crumbs  of  bread  through  the 
grate  of  a  prison,  at  the  will  of  a  military  commander, 
especially  when  I  recollect  what  is  to  be  superadded 


3o8  '  TRIAL  OF  AARON  BURR. 

that  he  is  to  be  transported  twelve  or  fifteen  hundred 
miles,  not  for  trial  or  suspicion  of  an  offense,  but  for  the 
iniquity  of  being  supposed  to  be  a  witness,  accidentally 
acquainted  with  facts.  What  are  to  be  the  consequen- 
ces, if  such  doctrines  as  these  are  to  be  tolerated  ?  That 
il  is  only  in  the  breast  of  a  military  commander  to  trans- 
port any,  the  most  peaceable  citizen,  if  he  be  only  sup- 
posed to  be  a  witness,  en  board  a  vessel,  under  military 
restraint,  at  any  season  *bf  the  year,  however  inclement, 
and  any  distance,  without  a  crime,  or  the  suspicion  of  a 
crime  ?  We  who  have  so  often  seen  and  read  the  Dec- 
laration of  Independence,  must  feel  indignation  at  the 
oppression  practiced  upon  Mrs  Knox.  This  is  one  of 
the  acts  of  oppression,  we  are  told,  that  the  British 
government  had  committed  against  us.  "Transporting 
us  beyond  seas,  to  be  tried  for  pretended  offenses,"  is 
stated  in  the  Declaration  of  Independence,  as  one  of  the 
principal  acts  of  misrule  which  roused  us  to  resistance, 
and  to  declare  ourselves  independent.  To  be  free  from 
such  aggression  on  our  rights  was  a  fundamental  part  of 
the  basis  of  our  independence.  This  was  not  a  mere 
ebullition  of  patriotism  for  the  purpose  of  exciting  popu- 
lar frenzy  ;  nor  one  of  those  artifices  used  to  increase 
the  public  discontent,  or  to  swell  the  catalogue  of  the 
crimes  committed  by  Great  Britain.  No,  sir,  this  par- 
ticular injury  alleged  in  the  Declaration  of  Independence 
was  a  real,  an'  enormous  grievance,  which  was  execrated 
by  the  wisest  men  of  our  country.  Exemption  from  it 
was  founded  in  human  rights,  and  was  one  of  those 
blessings  of  liberty  to  which  we  had  by  nature  a  right, 
and  which,  having  secured,  we  ought  ever  to  be  jealous 
6f  preserving.  This  invaluable  privilege  we  claim  as 
citizens.  It  is  a  demand  which  we  make  of  the  govern- 
ment for  protection,  and  it  must  be  guarded  by  the 
court,  unless  some  of  those  doctrines,  which  we  have 
long  reprobated  in  a  military  despotism,  shall  be  sanc- 
tioned, to  destroy  our  rights.  Even  then,  when  criminals 
were  transported,  the  innocent  were  left  unmolested. 
What  shall  we  say  to  this  aggravated  case,  when  the 
gentlemen  themselves  must  admit,  that  this  man  is  in 
nocent  ? 

I  will  not  enter  into  those  feelings  that  might  be  de- 


MOTION    FOR    AN    ATTACHMENT.        309 

scribed,  but  I  feel  horror  when  I  reflect  that  an  individual 
innocent  and  inoffensive,  engaged  in  locating  lands  for 
*he  subsistence  of  himself  and  family,  should  be  stopped 
t'rom  completing  his  laudable  undertaking,  and  taken  up 
far  from  his  home,  his  family  and  friends,  and  transport- 
ed as  a  witness  twelve  hundred  miles,  to  the  injury  and 
derangement  of  his  views  and  domestic  concerns.  I 
hope,  sir,  that  transportation  will  be  reserved  for  the 
guilty.  If  these  things  be  done  and  tolerated  in  the 
green  tree,  what  shall  not  be  tolerated  in  the  old-? 
What  is  to  be  the  effect  of  a  precedent  like  this?  Who 
can  foresae  the  consequences,  if  it  be  not  repressed  ? 
This  particular  case  may  lead  to  dreadful  events,  and  by 
artificial  means  become  a  tempest.  But  remember,  sir, 
you  have  foresight,  and  can  judge  of  the  practical  effects 
of  injurious  precedents ;  and  if  the  unjust  proceedings 
on  this  case  be  not  severely  censured  and  punished, 
though  we  may  not  suffer,  our  children  will  repent  of  it. 
But  this  act  is  said  to  have  been  extra-territorial,  and 
that  WTilkinson  was  not  engaged  in  the  whole  of  it :  and 
therefore,  it  is  pretended',  without  the  control  of  the 
court.  This  is  true,  as  far  as  Mr.  Hall  is  concerned.  We 
can  not  operate  on*  him  here.  If  it  were  so  at  the  be- 
ginning, see  how  it  has  passed  from  New  Orleans  to 
Richmond.  Wilkinson  was  engaged  in  it  at  the  begin- 
ning, at  the  second  stage,  and  at  James  river  itself.  The 
spirit  of  Wilkinson  prevades  the  whole.  He  is  every- 
where seen,  not  merely  as  an  integral  part,  but  as  the 
first  cause  of  the  whole.  Is  this  court  to  suffer  its 
witnesses  to  be  abused  without  its  jurisdiction?  But  I 
say,  that  it  was  not  without  the  limits  of  the  jurisdiction 
of  this  court. t  There  must  be  a. power  in  every  court  to 
procure  the  attendance  of  witnesses ;  and  wherever  that 
power  extends,  the  witnesses  are  protected  by  it — par- 
ticularly if  the  man  who  has  abused  them,  be  present 
before  the  court.  General  Wilkinson  is  present,  and  may 
be  animadverted  on.  I  will  not  pretend  to  say  what 
effect  this  may  have  on  his  character  ;  nor  can  it  affect 
the  right  to  examine  into  his  conduct ;  because  he  ought 
to  have  preconceived  the  consequences  before  he  com- 
mitted the  acts.  The  man  who  interposes  the  sword  in 
^upport  of  the  civil  authority,  ought  to  have  the  patriot- 


310  TRIAL  OF  AARON  BURR. 

ism  to  acquiesce  under  the  consequences,  let  them  be 
what  they  may.  The  prying  world  may  ask,  whether 
Wilkinson  is  to  be  suppoited  in  such  outrages? — in 
practicing  on  the  necessities,  fears,  and  terrors  of  the 
witnesses  ?  Whether  he  is  to  be  supported  in  the  duress 
which  prevailed  on  land  and  water?  and  in  (what  will 
be  more  fully  discussed  hereafter)  the  improper,  if  not 
felonious,  taking  of  letters  from  post-offices?  These 
questions  will  be  asked  after  the  testimony  is  known. 
The  answers  will  be  awful  to  him.  The  consequences  of 
his  violent  and  outrageous  conduct  must  be  awful  to 
him.  He  will  find  himself  divested  of  his  military 
array  and  parade,  with  which  he  used  to  be  surrounded 
at  New  Orleans,  to  stand  here  like  a  common  individual. 
He  must  then  answer  those  questions,  and  account  for 
his  invasions  of  the  rights  of  his  fellow-citizens.  The 
magnitude  of  the  offense  calls  for  exemplary  punishment. 
I  insist  on  the  motion  that  I  have  made,  that  an  attach- 
ment do  issue  against  General  Wilkinson,  for  the  various 
reasons  I  have  stated.  He  is  here  himself,  and  if  he  be 
innocent,  he  can  answer  and  purge  himself  on  oath,  of 
the  guilt  imputed  to  him;  and,  if  guilty  of  abuse  of 
power,  iet  him  be  punished  in  the  proper  manner. 

Mr.  Martin  said  that  he  would  make  a  few  additional 
observations;  that  he  would  not  enter  into  a  general  de- 
tail of  the  subject  then,  but  would  adduce  some  ad- 
ditional authorities,  to  show  that  the  acts  at  New 
Orleans  were  illegal,  and  that  the  magistrate  had 
no  authority  for  what  he  did.  If  it  were  pretended 
that  the  act  of  Congress  justified  it,  gentlemen  were 
much  mistaken.  [He  then  read  Graydon's  Digest  of 
the  Laws  of  the  United  States.]  The  33rd  section  of 
the  judicial  act  must  be  that  on  which  they  relied; 
that  witnesses  examined  under  the  circumstaces  there 
stated  may  be  committed,  but  that  this  law  extended  only 
to  the  magistrate  before  whom  the  arrested  person  was 
brought  to  be  examined  ;  that  it  says,  "  it  shall  be  the  duty 
of  the  judge  of  that  district  where  the  delinquent  is  im- 
prisoned, to  issue  a  warrant,  &c."  ;  that  Hall  did  not 
commit  Mr.  Burr,  who  was  seized  and  transported  more 
than  a  thousand  miles,  was  brought  hither,  examined 
here,  and  recognized  to  appear  this  term  ;  that  the  mag- 


MOTION    FOR    AN    ATTACHMENT.       311 

istrate  had  no  power  to  examine  the  witnesses  at  all, 
except  where  the  accused  person  was  brought  before  him 
to  be  examined.  That  2  Hale's  Pleas  of  the  Crown,  pp. 
51  and  285,  and  Mac  Nally,  314,  prove  that  Hall  had 
not  this  authority.  Those  authoritities  state,  that  where 
a  crime  is  committed  in  the  county  of  B.,  and  the  crim- 
inal is  arrested  in  the  county  of  C.,  the  magistrate 
before  whom  ha  is  brought  to  be  examined  in  the  county 
of  C.  has  really  no  original  jurisdiction  over  him,  nor 
can  his  examination  be  read  on  his  trial,  though  from 
the  necessity  of  the  case,  and  to  preserve  the  peace,  he 
has  a  consequential  jurisdiction  ;  and  can  examine  and 
commit  him  in  order  to  be  sent  to  the  proper  county. 
But  that  here,  as  the  party  accused  was  not  brought 
before  Hall,  he  had  no  power  whatever.  He  had  neither 
original  nor  consequential  jurisdiction.  Everything  he 
did  at  New  Orleans,  at  the  request  of  General  Wilkin- 
son, was  perfectly  illegal  and  extrajudicial ;  but  that 
perhaps  it  might  be  said,  that  state  necessity  would 
justify  what  the  law  did  not  authorize.  On  this  subject 
he  referred  the  court  to  what  was  said  by  one  of  the 
most  celebrated  judicial  characters  of  the  British  judi- 
ciary, Lord  Cambden,  3  State  Trials,  320.  He  referred 
also  to  i  State  Trials,  vol.  7,  180. 

Mr.  Hay. — He  is  anticipating  arguments  which  we 
shall  never  use. 

Mr.  Martin  quoted  3  State  Trials,  8th  article  of  the 
impeachment  of  Sir  Robert  Beckly ;  I  vol.  709,  710, 
711,  716,  717,  2  State  Trials,  306,  vol.  12;  7  State  Trials, 
306. 

Mr.  Wirt. — I  shall  not  trouble  you  to  take  notes. 
The  short  question  is,  whether  General  Wilkinson  be 
guilty  of  a  contempt,  and  ought  to  be  attached  ?  We 
proposed  that  the  court  should  decide  at  once,  without 
any  observations  on  either  side  ;  but  gentlemen  insisted 
on  an  argument,  and  they  have  had  it.  Our  impressions 
are,  that  the  evidence  is  perfectly  clear  ;  and  we  are 
willing  to  submit  the  question  on  the  argument  already 
heard. 

Mr.  Burr's  counsel  insisted  to  speak  further. 

Mr.  WickJiam. — All  questions  are  very  plain  to  counsel 
on  their  own  side.  They  may  be  mistaken.  Though  it 


3i2  TRIAL  OF  AARON  BURR, 

may  not  be  perfectly  clear  on  our  side,  yet  I  think  I 
can  convince  the  court,  that  on  an  examination  of  the 
law  and  the  facts,  the  attachment  ought  to  issue. 

Mr.  Mac  Rae. — I  regret  that  so  much  of  the  time  of 
the  court  is  to  be  consumed  on  every  point.  I  confess 
that  my  hopes  were,  that  our  offer  to  submit  the  case 
without  discussion,  would  have  been  agreed  to  ;  but  as 
they  insist  on  an  argument,  they  must  *be  gratified.  I 
hope  that  I  may  be  permitted  to  say,  that  in  the  whole 
course  of  my  short  practice,  I  never  read  or  heard  of  a 
case  similar  to  that  now  before  the  court.  The  motion 
as  to  its  foundation  is  "  sui  generis"  No  motion  of  a 
similar  character  or  nature  can  be  found  in  the  annals  of 
forensic  proceedings,  either  in  England  or  in  this  coun- 
try. If  there  be  any  record  of  any  such  motion,  I  have 
been  unable  to  find  it,  after  the  most  industrious  re- 
searches. Mr.  Randolph,  sensible  of  this,  thought 
proper  to  read  a  passage  from  3rd  Hawkins,  to  show  that 
such  cases  might  occur,  for  which  no  precedent  could  be 
found  ;  and  that  in  such  cases,  the  court  was  to  decide, 
"  according  to  the  general  reason  of  the  law." 

It  was  deemed  proper  to  state,  as  some  kind  of  apol- 
ogy, for  the  unmerited  attack  on  General  Wilkinson, 
that  no  precedent  could  be  found  to  justify  this  applica- 
ti4n  to  the  court.  Before  I  shall  reply  to  the  animad- 
versions on  his  character,  I  beg  leave  to  observe,  that 
General  Wilkinson  is  doubly  protected  by  the  law  of  the 
land  from  any  danger  from  this  motion,  even'  admitting 
that  the  charges  against  him  are  true,  which  is  utterly 
denied.  The  charge  against  him  is,  that  he  has  ob- 
structed the  administration  of  justice  in  the  cause  of  the 
prisoner.  He  is  said  to  have  obstructed  the  administra- 
tion of  it  by  two  distinct  acts:  First,  by  extorting  testi- 
mony from  Knox,  on  this  subject :  Secondly,  by  forcibly 
bringing  him  round  from  New  Orleans  to  this  city,  to 
give  evidence  here.  If  these  charges  were  both  true, 
they  would  not  warrant  the  motion  to  attach  General 
Wilkinson.  I  shall  by  and  by  prove  them  to  be  un- 
;true.  But  suppose  them,  for  the  sake  of  argument,  to 
be  true.  If  the  offense  have  been  committed  at  all., 
according  to  the  allegations  of  those  who  have  made 
this  motion,  it  has  been  committed  at  New  Orleans. 


MOTION  FOR  AN  ATTACHMENT.          313 

For  any  real  offense  committed  at  New  Orleans,  a  person 
is  not  answerable,  before  this  court,  because  that  place 
is  not  within  its  jurisdiction.  I  should  deem  itan  insult 
to  this  court,  to  dwell  on  such  a  topic,  or  to  use  much 
argument  to  prove  that  an  offense,  committed  out  of  the 
jurisdiction  of  this  court  can  not  be  judicially  noticed  by 
it.  But  suppose  the  offense  to  be  done  within  the  lim- 
its of  Virginia,  and  of  course  within  the  jurisdiction  of 
this  court.  General  Wilkinson,  even  in  that  event,  would 
not  be  answerable  in  this  form  ;  because  he  appears  as  a 
witness,  before  the  court,  in  obedience  to  its  subpoena, 
and  a  witness  is  privileged  from  arrests ;  he  can  not  be 
arrested  for  any  act  of  this  description. 

In  the  ist  vol.  of  the  Laws  of  the  United  States,  p.  74, 
it  is  'enacted,  "  That  the  laws  of  the  several  states,  except 
where  the  constitution,  treaties,  or  statutes  of  the  United 
States,  shall  otherwise  require  or  provide,  shall  be  re- 
garded as  rules  of  decision,  in  trials  at  common  law,  in 
the  courts  of  the*  United  States,  in  cases  where  they  ap- 
ply." There  is  no  particular  direction  given  in  the  laws 
of  the  United  States,  as  to  the  privileges  of  witnesses; 
of  course,  whenever  they  come  in  question,  it  will  be 
proper  to  inquire  in  the  acts  of  the  legislature  of  Virginia, 
how  extensive  their  privileges  are.  In  the  revised  code 
of  the  Laws  of  this  state,  p.  278,  it  is  enacted,  "  That 
witnesses  shall  be  privileged  from  arrests,  in  all  cases  ex- 
cept treason,  felony,  and  breaches  of  the  peace  during 
their  attendance."  The  only  cases  in  which  a  person 
who  is  a  witness  can  be  arrested,  are  treason,  felony,  and 
breaches  of  the  peace.  Here  we  might  safely  rest  his 
defense ;  but  every  step  he  takes,  as  a  soldier  and 
patriot,  he  travels  on  solid  ground.  I  trust  that  this 
court  will  say,  that  instead  of  obstructing  "the  administra- 
tion of  justice,  or  deserving  the  gmallest  censure,  for 
what  he  has  done  in  this  case,  he  has  deserved  well  of 
his  country,  and  merits  the  highest  encomium.  When 
he  looks  back  to  these  transactions,  and  the  part  he  acted, 
as  well  towards  Knox  as  to  others,  he  will  see  no 
cause  to  blame  himself  for  anything  he  has  done  in 
.  public  or  private  ;  but  will  feel  that  pride  which  conscious 
innocence  never  fails  to  inspire.  He  has  risked  his  for- 
tune, his  life,  and  his  fame,  to  save  his  country  from 


314  TRIAL     OF    AARON    BURR. 

audacious  treason,  which  but  for  him,  might  have  ended 
in  the  subversion  of  the  government,  and  destruction  of 
the  liberties  of  his  country.  I  trust,  and  he  expects, 
that  his  country  and  this  court  will  examine  and  appre- 
ciate his  conduct,  and  will  bestow  on  him  that  reward  of 
praise,  which  his  praiseworthy  deeds  demand. 

Sir,  Mr.  Randolph  let  out  an  important  secret.  The 
gentlemen  finding  that  there  is  no  evidence  to  bear  them 
out  in  their  illiberal  attack  on  the  character  of  General 
Wilkinson,  intimates  that  they  will  resort  for  testimony 
against  him,  to  the  very  man  who  is  thus  attacked  ;  that 
they  will  call  on  him  to  answer  their  interrogatories.  Is 
this  correct?  Has  Mr.  Randolph's  extensive  reading 
taught  him,  that,  instead  of  proving  General  Wilkinson's 
guilt,  he  shall  be,condemned  out  of  his  own  mouth?- 

Here  Mr.  Wickham  interrupted  Mr.  Mac  Rae,  and  in- 
formecl  him,  that  he  had  misunderstood  Mr.  Randolph 
(who  was  then  absent),  who  had  taken  the  course,  pointed 
out  by  the  court,  and  the  chief  justice  explained  it  thus: 
that  the  attachment  must  go,  if  the  testimony  were 
sufficient  to  prove  that  it  ought  to  be  granted  ;  and  then 
the  defendant  must  answer  interrogatories;  but  that 
without  sufficient  evidence,  an  attachment  could  not  be 
granted  in  any  case. 

Mr.  Mac  Rae — I  have  examined  authorities,  and  un- 
derstand the  regular  course ;  but  I  understood  Mr. 
Randolph  to  have  said,  that  if  the  evidence  amounted 
only  to  suspicion,  General  Wilkinson  must  be  called  on 
as  a  witness  against  himself,  which  would  be  illegal  and  a 
violation  of  a  sacred  right.  Here  Mr.  Mac  Rae  referred 
to  1st  Dallas's  Reports,  328,  in  the  case  of  the  Com- 
monwealth v.  Oswald,  and  read  part  of  the  argument  of 
the  counsel,  and  the  opinion  of  the  court,  approving 
thereof;  and  contended  that  the  contempt  must  be 
proved  by  disinterested  witnesses  ;  and  that  this  proof 
must  be  clear  and  full ;  after  which  proof,  the  defendant 
has  the  privilege  of  purging  himself  from  the  imputed 
offense.  He  then  proceeded  :  The  question  then  is,  has 
he  committed  this  offense  or  not?  Mr.  Randolph  says, 
that  not  merely  the  evidence  of  Knox  proves  this  con- 
tempt, but  that  two  witnesses,  whom  we  have  ourselves 
improvidently  introduced,  have  confirmed  it.  This  con- 


MO  TWN  FOR  AN  A  TTA  CHMENT.          315 

elusion  is  wholly  unsupported  by  evidence.  Destitute 
of  proof  from  beginning  to  end,  the  gentleman  has  beea 
reduced  to  the  hard  and  cruel  necessity  of  heaping  con- 
jecture on  conjecture,  till  he  has  conjectured  that  this 
court  will,  without  a  particle  of  proof,  conjecture  and 
grant  their  motion.  Though  I  shall  be  followed  by  gen- 
tlemen of  unexampled  talents  and  excellent  memories,  I 
venture  to  affirm,  that  they  will  not  be  able  to  show, 
that  this  motion  ought  to  be  granted,  or  even  to  excite 
doubts.  I  must  pass  over  some  of  that  gentlemen's  con- 
jectures, without  feeling  any  kind  of  disrespect  for  him 
(I  am  disposed  to  treat  him,  and  every  other  gentleman  to 
whom  I  am  opposed,  with  respect).  I  feel  myself  com- 
pelled to  do  so,  because  they  do  not  appear  to  me  to 
merit  a  serious  refutation.  I  shall,  however,  notice  a 
fe\v  of  them.  First,  he  states  a  very  important  circum- 
stance which  he  trusts  will  be  conclusive  with  the  court ; 
that  a  military  man  was  made,  a  deputy-marshal;  and 
that  this  was  the  result  of  a  concert  between  Judge  Hall 
and  General  Wilkinson  ;  that  they  were  secretly  plotting 
together  to  make  it  appear  a  civil,  when  in  fact,  it  was  a 
military  power.  When  Mr.  Randolph  formed  his  con- 
jecture, he  unfortunately  forgot,  that  when  he  and  Mr. 
Graham  were*  deliberating  on  the  way  of  bringing  reluctant 
witnesses  to  this  place^  to  give  testimony  in  support  of 
the  violated  laws,  he  was  only  doing  what  he  was  bound 
to  perform  in  duty  as  an  honest  man.  That  he  desired 
to  compel  their  attendance  by  legal  means  only ;  that  he 
consulted  Mr.  Graham  how  to  proceed  ;  that  it  was  sug- 
gested to  him  by  Mr.  Graham,  that  it  would  be  proper  to 
see  Judge  Hall,  and  consult  him  ;  and  that  Mr.  Graham, 
knowing  that  there  was  a  misunderstanding  between 
Judge  Hall  and  General  Wilkinson,  offered  to  consult  the 
judge  himself,  and  did  so.  What  then  becomes  of  the 
concert  which  is  urged  to  have  taken  place  between  them  ? 
For  it  is  said,  that  all  were  to  be  directed  by  General 
Wilkinson.  Did  Mr.  Randolph  recollect  this?  Or  did  he 
suppose  that  the  court  would  attend  to  his  statement  of 
secret  plots  and  contrivances  without  proof  to  support  it  ? 
You  find  that  the  fact  is,  that  there  was  no  concert  between 
them  ;  that  they  were  separated  by  a  previous  misunder- 
standing;  and  that  Judge  Hall  acted  upon  the  applica- 


316  TRIAL  OF  AARON  BURR. 

tion  of  Mr.  Graham.  Away,  then,  goes  this  conjecture  ; 
in  truth,  so  all  must  go:  for  he  has  no  proof  to  support 
any.  But  "  a  military  man  was  made  a  marshal." 
What  of  that?  Who  made  him  so?  You  recollect  the 
interrogatory  put  yesterday  to  Mr.  Gaines.  "Would 
you  have  accepted  of  the  deputation  unless  you  knew 
that  it  would  be  agreeable  to  General  Wilkinson  ?" 
Gaines  said  three  times  on  oath,  that  he  had  no  previous 
communication  with  General  Wilkinson  on  the  subject  ; 
that  he  was  advised  by  Mr.  Graham.  Did  not  Mr.1 
Graham  say  that  he  had  urged  him  to  accept  it  ;  and 
that  it  was  much  against  his  inclination  that  he  did 
accept  it?  This  conjecture  also  falls  to  the  ground.  It 
is  a  poor  prop  ;  but  like  the  rest  of  the  props,  weak 
and  useless. 

But  "  Captain  Gaines  acted  contrary  to  law."  Sup- 
pose we  admit  (but  which  is  not  admitted),  that  Captain 
Gaines  did  act  contrary  to  law.  What  is  that  to  General 
Wilkinson  ?  Is  he  anwerablc  for  it?  It  was  thought  in 
days  of  yore  a  hard  rule,  when  theyvisited  the  sins  of 
the  fathers  upon  the  children,  to  the  third  and  fourth 
generation  ;  but  it  would  be  still  harder  to  make  General 
Wilkinson  responsible  for  the  supposed  misconduct  of 
Gaines.  I  have  shown  that  there  was  no  sort  of  connec- 
tion between  them.  Gaines  has  declared  there  was  none. 
Gentlemen  seem  to  wish  to  prove,  that  Gaines  has  done 
what  is  unlawful,  and  then  to  impute  without  proof,  the 
whole  to  General  Wilkinson.  I  believe  the  spirit  of  the 
law  justified  what  Captain  Gaines  did.  [Here  he  read 
Graydon's  Digest  of  the  Laws.]  The  words  are  such 
as  might  have  fairly  induced  the  judge  and  Captain 
Games  to  have  acted  as  they  did.  The  words  are  ex- 
tremely broad,  and  comprehensive  enough  to  cover  this 
very  case.  It  is  not  certain,  but  it  is  at  least  extremely 
questionable  whether  the  law  did  not  authome  what 
they  did.  But  whether  it  did  or  not,  is  not  material. 
General  Wilkinson  and  Captain  Gaines  are  two  distinct 
men ;  and  General  Wilkinson  is  not  bound  to  answer  for 
the  offenses  or  errors  of  another  man. 

Mr.  Randolph  then  skips  to  Judge  Hall  ;  and  hia 
judicial  outrage  is  repeatedly  charged  to  General  Wilkin- 
son. Why,  sir,  there  was  a  misunderstanding  between 


MOTION  FOR  AN  ATTACHMENT.        317 

them.  The  judge  acted  at  the  instance  of  Mr.  Graham, 
and  not  at  that  of  General  Wilkinson,  who  therefore  can 
not  be  answerable  for  it.  After  proving  this  error  or 
judicial  outrage,  as  it  is  called,  of  the  judge,  they  ought 
to  show  a  connection  between  them  to  have  existed  be- 
fore. But,  sir,  Mr.  Randolph  discovers  a  very  important 
secret.  He  says  that  the  act  of  congress  compels  the 
removal  of  the  party  accused  and  the  removal  of  the 
witnesses  together  ;  that  in  giving  power  to  the  judge  to 
remove  the  witnesses,  it  requires  him  at  the  same  time  to 
remove  the  party  accused  ;  that  both  must  be  removed 
together.  But  if  the  party  accused  had  been  removed  be- 
fore, ought  not  the  witnesses  to  be  removed  afterwards? 
Because  it  does  not  come  within  the  letter  of  the  law, 
would  he  not  have  a  right  to  send  on  the  witnesses?  I 
doubt  whether  that  would  be  a  correct  interpretation 
of  the  act  of  congress.  It  can  not  be  reasonably  sup- 
posed, that  as  the  removal  of  the  witnesses  was  as  much 
intended  as  that  of  the  party  accused  ;  that  '  if  the 
accused  were  removed  first,  the  witnesses  should  not  'be 
removed  afterwards.  I  should  suppose  that  the  judge 
might  remove  both  at  different  times;  that  if  he  sent  on 
the  accused  before  (from  necessity  or  convenience),  he 
might  send  on  the  witnesses  afterwards.  But  whether 
the  judge  committed  an  outrage  or  not,  is  unimportant 
to  General  Wilkinson.  He  was  not  bound  to  attend  on 
every  step  which  Judge  Hall  had  taken  ;  and  if  the 
judge  may  send  on  the  witnesses  without  the  party 
accused,  it  is  to  be  intended,  that  he  has  fully  executed 
the  law,  until  the  contrary  appear  in  a  cause  of  his  own, 
in  which  he  is  a  party,  called  on  to  account  for  his  con- 
duct, and  in  which  he  shall  have  an  opportunity  to  vin- 
dicate himself.  But  whether  his  construction  of  the  law 
be  correct  or  not,  is  immaterial.  Wilkinson  is  not  amen- 
able to  this  or  any  court,  for  any  act  of  Judge  Hall,  or 
any  other  officer. 

But  Mr.' Randolph  has  discovered  a  great  secret,  which 
no  body  else  has  discovered  ;  which  the  most  astute 
men  in  the  commonwealth  could  not  find  out :  "  That 
•it  was  a  military  order  which  was  given  by  Gaines  to 
Sergeant  Dunbaugh,  to  remove  Knox  from  jail  to  the 
vessel ;  "  and  this  is  thought  a  proof  that  the  whole 


3i8  TRIAL  OF  AARON  BURR. 

was  contrived  by  General  Wilkinson  ;  and  that  the  order 
emanated  from  him.  This  is  in  the  very  teeth  of  the 
evidence.  Mr.  Gaines  being  called  on  to  say  whether  ho 
had  not.  given  it  as  a  military  order  to.  Dunbaugh,  an- 
swered explicitly  in  the  negative  ;  that  he  had  not  given 
it  in  that  capacity.  I  saw  the  gentlemen  looking  atten- 
tively at  the  order  ;  and  I  understood  their  motive  to 
be,  to  discover  whether  Gaines  had  signed  it  as  captain  ; 
but  when  this  order  is  seen,  there  is  no  signature  of  "  cap- 
tain "  to  it.  He  merely  annexed  his  own  name  "  Gaines," 
which  proves  that  he  was  not  acting  in  a  military  character. 
It  is  very  probable  that  if  he  had  been  acting  in  that  char- 
acter, he  would  have  signed  his  military  title.  It  is  cus- 
tomary, I  believe,  to  sign  military  orders  with  the  title  or 
rank  of  the  officers  who  give  them  ;  and  an  officer  of  his 
rank  would  have  signed  the  order  as  "  captain."  If  there 
were  any  doubt  ^before,  that  doubt  could  no  longer  exist, 
after  Captain  Gaines  has  declared  before  the  court,  not 
only  that  he  did  not  give  a  military  order,  but  that  he 
never  did  act  under  General  Wilkinson,  in  that  whole 
transaction.  He  was  called  on  repeatedly  to  say,  whether 
he  had  not  given  the  order  to  Dunbaugh  as  his  sergeant, 
and  in  his  military  character  ;  and  he  as  often  denied  that 
he  had  commanded  him  as  sergeant  (though  he  under- 
stood him  to  be  a  sergeant),  but  because  he  had  obtained 
his  promise  before  to  execute  the  order  ;  and  if  he  had 
not,  he  would  have  got  some  other  person  to  do  it.  Sir, 
if  Gaines  had  been  acting  as  a  captain,  and  signing  as  a 
military  commander,  would  he  have  proceeded  to  ask  a 
favor  as  he  did?  Would  a  gentleman  who  understood 
his  duty,  have  gone  to  him,  and  asked  him,  "Will  you 
be  pleased  to  do  so?  "  No,  sir,  he  would  have  enjoine'd 
it  as  his  duty:  and  his  not  doing  so, proves  that  he  acted 
in  a  civil  capacity;  and  this  disproves  this  conjecture 
also. 

But  General  Wilkinson  is  a  great  criminal,  because  he 
consulted  the  attorney-general  of  the  district.'  The  out- 
cry which  had  been  raised  against  this  valuable  citizen 
and  soldier,  gave  him  sufficient  warning,  in  order  to  avoid 
reproach,  never  to  do  an  act  of  this  nature,  but  by  the 
advice  of  persons  learned  in  the  law.  Of  course,  when 
General  Wilkinson,  instead  of  giving  advice  himself, 


MOTION  FOR  AN  ATTACHMENT.          319 

mentioned  to  those  who  were  engaged  to  act  for  the  pub- 
lic that  they  should  advise  with  the  attorney-general 
and  another  lawyer  how  to  act  ;  it  showed  a  disposition 
to  have  nothing  done  but  what  the  law  warranted.  Why 
are  their  acts  charged  against  him  ?  Is  not  this  enough  to 
show,  that  the  charge  of  violence  and  oppression  is 
wholly  unfounded?  If  such  conduct  as  this  be  censured, 
I  should  suppose  that  it  would  be  better  to  be  silent,  than 
to  give  judicious  and  friendly  advice.  As  Wilkinson  was 
not  himself«a  lawyer,  he  told  those  gentlemen,  "  Consult 
the  attorney-general,  and  other  gentlemen  learned  in  the 
law,  who  will  advise  jrou  how  to  act."  Is  it  indeed  crim- 
inal to  aid  the  government  in  a  case  where  the  govern- 
ment and  all  Ameiica  are  interested  ;  and,  instead  of 
giving  advice  to  the  persons  called  upon  to  act  for  the 
public,  to  refer  them  to  the  best  source  of  legal  informa- 
tion, the  attorney-general,  and  another  lawyer?  I  never 
expected  to  hear  such  an  objection  urged  against  General 
Wilkinson.  This  part  of  his  conduct  is  strong  and  con- 
clusive to  show  that  he  was  determined  that  the  laws  of 
his  country  should  be  the  rule  of  his  conduct.  But  it  is 
not  to  be  wondered  at,  that  sinking  without  evidence  or 
law  to  support  them,  they  should  catch  at  this  straw,  for 
there  is  nothing  but  assertion  and  suspicion,  all  conjec- 
ture and  no  proof. 

But  my  friend  Mr.  Randolph,  forgetting  that  he  was 
addressing  this  honorable  court,  and  feeling  as  he  does 
, sometimes  when  he  addresses  gentlemen  ill  informed 
about  the  laws  of  their  country,  endeavors  to  excite 
sympathy,  and  tells  you  without  proving  it  that  General 
Wilkinson  threw  him  (Knox)  into  a  ship  ;  that  he  was 
torn  from  his  family  and  friends  and  transported  hither. 
But  he  forgets  the  facts.  What  family  had  he  in  New 
Orleans,  and  how  long  had  he  been  there?  He  stated 
that  he  went  with  Colonel  Tyler  down  the  river.  [Here 
Mr.  Mac  Rae  repeated  the  substance  of  Mr.  Knox's  own 
testimony  relative  to  his  going  down  the  riyer  to  New 
Orleans  and  staying  there.]  You  will  observe,  sir,  that  I 
am  only  .stating  what  he  himself  said  yesterday.  He  was 
dragged  away  from  his  country,  and  transported-.  What 
country?  He  only  stayed  two  short  months  at  New  Or. 
leans.  But,  alas!  alas!  He  has  suffered  all  these  dreadfu; 


320  TRIAL  OF  AARON  BURR. 

calamities.  This  is  the  melancholy  statement  made  to 
help  them  out,  but  all  without  proof.  We  fear  not  its 
effects.  But,  sir,  General  Wilkinson  is  a  curious  sort  of 
a  man.  He  sometimes  uses  all  the  blandishments  of  a 
courtier;  sometimes  he  is  the  most  cruel  savage  that 
ever  existed.  Sometimes  he  talks  of  free-masonry  ;  and 
all  by  fits  and  starts.  By  fits  he  is  very  kind  ;  and  by 
fits  very  cruel.  But  what  evidence  is  there  to  prove  all 
this?  Has  Knox  said  that  General  Wilkinson  treated 
him  cruelly?  Does  Mr.  Graham  say  so?  Np,  sir.  Was, 
he  maltreated  on  shore  or  on  board  ?  The  ship's  provi- 
sions were  very  good,  and  he  was  treated  on  board  like 
other  people.  Has  Captain  Gaines  said  that  he  treated 
him  very  cruelly?  Where  did  Mr.  Randolph  find  ttys 
evidence  ?  I  hope  he  misunderstood  the  witnesses.  Your 
honors,  who  have  listened  patiently  to  the  testimony, 
know  that  these  are  only  bold  conjectures.  Well,  then, 
after  going  through  all  these  conjectures,  and  refuting 
them,  we  come  to  another;  that  Wilkinson  put  him  on 
board,  transported  him,  and  brought  him  to  Richmond  ; 
and  this  conjecture  is  equally  destitute  of  proof.  These 
acts  ought  to  be  proved,  before  gentlemen  indulge  in 
this  freedom  of  speaking  to  the  court  of  violence, 
oppression,  and  tyranny.  I  do  not  wish  to  tire  the  court 
by  a  recapitulation  of  all  the  evidence,  but  I  will  briefly 
repeat  the  principal  facts  to  show  that  General  Wilkinson 
had  no  agency  in  them.  How  was  Knox  first  taken  in 
custody?  Was  it  by  General  Wilkinson  ?  No;  by  the 
sheriff  at  New  Orleans.  Before  whom  was  he  taken  ? 
Before  Judge  Hall ;  a  man  who,  we  are  told,  was  at  vari- 
ance with  him.  By  whom  was  he  committed  ?  By  a 
warrant  from  the  same  Judge  Hall,  executed  by  Captain 
Gaines,  in  his  civil  capacity.  Was  this  done  by  the  direc- 
tion of  General  Wilkinson?  There  is  no  evidence  what- 
ever of  this  fact.  By  whose  orders  was  he  carried  on 
board  the  vessel  ?  By  the  same  deputy-marshal's  request  to 
Sergeant  Dunbaugh.  By  whom  was  he  brought  to  Norfolk  ? 
By  Captain  Gaines,  who  has  the  honesty  to  confess  that 
he  did  it.  Is  it  sense,  or  law,  to  attach  General  Wilkin- 
son for  an  act  which  another  confesses  he  has  done,  with- 
out having  consulted  General  Wilkinson  on  the  subject? 
But  it  is  a  most  important  object  to  affect  General  Wil- 


MOTION    FOR    AN    ATTACHMENT.       321 

kinson  ;  because  he  is  summoned  as  a  witness  against  the 
prisoner.  It  has  been  often  said  by  the  counsel  of  the  ac- 
cused that  he  is  a  most  important  witness ;  and  if  the  course 
pursued  by  those  gentlemen  can  justify  conjectures  on 
our  part,  we  may  perceive  that  they  think  him  an  all-im- ' 
portant  witness:  for  there  is  no  step  taken  without  some 
obloquy  cast  on  this  respectable  man.  It  was  rumored 
all  over  this  town,  that  he  would  never  dare  to  come  to 
it :  that  he  would  tremble  to  appear  before  Aaron  Burr. 
This  soldier  and  patriot  has  shown  that  he  can  confront 
Aaron  Burr  or  any  other  man.  The  report  before,  and 
the  proceedings  had  against  him  since  his  arrival,  have 
but  one  object :  and  that  is  to  excite  suspicions  against 
his  character.  From  the  delay  in  his  coming,  even  hon- 
est men  began  to  think  that  perhaps  there  was  some 
truth  in  what  was  said  against  him.  But  now  that  he 
has  come,  and  that  this  cloud  of  prejudice  has  been  dissi- 
pated, another  must  be  conjured  up.  Not  content  with 
attacking  him  for  his  own  acts,  they  attack  him  for  the 
acts  of  others,  in  which  he  had  no  agency  or  concern. 
Does  not  the  court  see  the  object  of  attacking  General 
Wilkinson?  Has  he  done  anything  to  obstruct  the  ad- 
ministration of  justice?  Does  the  court  believe  that  the 
gentlemen  themselves  believe,  that  he  has  done  any  act 
to  obstruct  the  administration  o.f  justice?  His  great 
crime,  forsooth,  is,  that*  he  did  presume  to  advise  with 
proper  and  well-informed  persons,  in  order  to  make  the 
law  his  guide,  in  endeavoring  to  procure  material  evidence 
for  his  country,  in  a  case  deeply  affecting  its  interest  ; 
and  for  this  high  sin,  he  is  charged  with  obstructing  the 
administration  of  justice.  Whether  he  has  done  so  or 
not,  the  court  will  decide.  I  am  confident  they  will  de- 
cide fairly  and  correctly. 

The  court  is  entitled  to  admiration  for  having  so  very 
patiently  heard  all  the  arguments  which  have  been  de- 
livered. It  is  right  to  hear  everything  that  can  be  said 
on  both  sides  of  every  question  brought  before  the  court. 
I  wish  it  to  be  known,  let  the  event  be  what  it  may,  that 
there  never  was  a  case  in  which  there  was  less  of  perse- 
cution, than  this  case  against  Aaron  Burr.  He  has  had 
privileges  that  never  were  extended  to  any  other  man. 
I  rejoice  that  he  has  had  those  privileges  :  and  we  wish 
26 


322  TRIAL  OF  AARON  B  URR 

it  to  be  known,  that  it  is  our  desire,  that  he  may  continue 
to  have  the  benefit  of  all  the  privileges  to  which  he  can 
possibly  be  entitled  ;  because  it  will  completely  repel  the 
unjust  imputation  of  persecution. 

Sir,  shall  I  add  anything  more  ?  Is  it  necessary?  But 
let  me  ask,  why  has  the  prisoner  made  this  motion  ? 
Has  he  taken  out  a  subpoena,  that  General  Wilkinson  or 
any  other  person  has  prevented  from  being  served  ?  Has 
any  witness  summoned  for  him,  been  prevented  from  at- 
tending? Justice  has  been  strangely  obstructed  in  this 
case  ;  not  by  stopping  witnesses,  but  by  bringing  hither  a 
man  who  has  been  with  Aaron  Burr,  and  appeared  to  be 
a  material  witness.  There  are  many  motives  for  believ- 
ing, that  this  man  was  an  important  witness.  The  court 
will  recollect  what  he  has  already  said.  He  was  with  the 
accused,  and  was,  from  his  situation,  one  of  those  to  whom 
the  accused  might  have  communicated  some  of  his  projects. 
It  has  been  said  that  there  was  no  evidence  of  Knox's 
materiality,  though  General  Wilkinson  made  an  affidavit 
to  that  effect.  The  information  given  by  Knox  himself, 
and  the  circumstances  of  the  case,  justified  that  affidavit  ; 
and  in  my  conscience  I  believe  him  to  be  material,  and 
that  when  on  his  oath  hereafter,  on  the  trial,  he  will  give 
material  testimony,  if  he  disclose  all  he  knows. 

Mr.  Randolph  may  move  for  attachments  to-  confine 
all  the  people  in  jail,  in  defense  of  Aaron  Burr,  while  lie 
walks  the  streets  unmolested.  I  do  not  know  how  many 
motions  are  to  be  made,  if  this  motion  succeed  ;  and 
they  have  already  apprised  us,  that  they  had  several 
others  to  make.  The  next  motion,  I  suppose,  will  be 
against  Mr.  Perkins  for  taking  up  Aaron  Burr.  Even  for 
such  a  motion,  there  would  be  more  ground  than  for  that 
now  before  the  court. 

I  hope,  sir,  that  for  the  length  of  time  that  I  have  tres- 
passed on  the  patience  of  the  court,  I  may  be  excused  : 
and  that  I  may  be  also  excused,  if,  by  any  inadvertent 
expression,  I  have  wounded  the  feelings  of  any  gentle- 
man ;  which  was  far  from  being  my  intention.  I  merely 
obeyed  the  impulse  of  duty,  and  I  cheerfully  submit  the 
the  case  to  the  court. 

Mr.  Benjamin  Botts  then  addressed  the  court  as  fol- 
lows : 


MOTION    FOR    AN    ATTACHMENT.       323 

The  charge,  on  which  our  motion  is  founded  is,  that  il- 
legal means,  invading  the  privilege  of  witnesses,  tending 
to  the  corruption  of  evidence,  and  materially  to  affect  the 
justice  and  dignity  of  the  court,  in  the  present  prosecu- 
tion, have  been  practiced  by  James  Wilkinson,  within  the 
jurisdiction  of  this  court,  so  as  to  subject  him  to  process 
of  contempt. 

The  first  description  of  these  illegal  means,  consisted 
in  rifling  the  post-offices,  and  the  seizure  of  private  papers, 
upon  searches,  some  of  which  are  attempted  to  be  used 
against  Mr.  Burr  ;  and  others  are  believed  to  have  de- 
prived him  of  the  means  of  preparing  for  his  defense, 
through  the  mail.  These  acts  of  oppression  would, 
in  England,  have  subjected  any  man  to  the  heaviest 
pains  and  penalties  of  the  law.  In  the  time  of  Lord 
Camden,  that  great  supporter  of  the  rights  of  the  sub- 
ject against  the  assumptions  of  power,  upon  solemn 
argument,  declared  that  such  seizures  violated  the 
first  pinciples  of  social  union,  and  that  the  law  of  Eng- 
land admitted  no  pretext  of  state  necessity,  to  justify 
acts  so  subversive  of  the  dearest  rights  of  the  people. 
He  enumerated  the  multiplied  abuses  to  which  it  had 
led,  and  clearly  proved  that  the  power  was  utterly 
incompatible  with  the  exemption  of  the  accused  from 
giving  evidence  against  himself,  and  with  those  privileges 
which  Magna  Charta  had  secured.  The  constitution  ot 
the  United  States  provides  against  searches  upon  war- 
rants :  but  the  present  case  reaches  beyond  the  evil  to  which 
the  convention  looked.  Mr.  Wilkinson  thought  the  form 
of  a  warrant  unnecessary.  The  act  of  congress  inflicts 
high  pains  and  penalties  for  taking  or  breaking  a  letter, 
after  it  has  been  put  into  the  post-office.  The  postmas- 
ters, and  all  other  agents  in  the  establishment,  are  sub- 
ject to  punishment  for  violating  the  mail ;  no  exception 
is  made  in  cases  of  insurrection,  rebellion,  or  invasion  ; 
though  assuredly  these  events  must  have  been  within  the 
view  of  the  national  legislature,  as  possible  ones.  Private 
property  and  commerce,  the  innocent  and  the  guilty,  \\\\\ 
be  at  the  mercy  of  principal  and  deputy  plunderers,  as 
long  as  the  practice  obtains.  I  never  can  reflect  on  this 
subject,  without  feeling  strong  emotions.  I  can  not 
forbear  again  to  remind  you  of  the  part  acted  by  the 


324  TRIAL   OF  AARON  BURR. 

prosecutor  when  I  first  introduced  this  subject  to  the 
court  the  other  day.  He  complained  that  I  should  in- 
sinuate the  perpetration  of  high  crimes  like  these,  with- 
out proof.  His  honest  bosom  seemed  to  swell  with  in- 
dignation at  the  injustice  I  was  doing.  I  felt  the  impro- 
priety of  making  such  heavy  charges,  without  the  ex- 
hibition of  testimony,  and  called  for  proof.  Instantly 
the  scene  was  changed.  The  man  was  lost  in  the  lawyer. 
What  a  minute  before  was  a  crime,  then  became  a  sub- 
ject of  eulogy.  The  second  class  of  illegal  means 
practiced  by  General  Wilkinson,  we  contend,  consisted 
in  attempts  to.  extort  and  inveigle  partial  te\stimony 
against  Mr.  Burr. 

There  are  two  characters  of  craft  in  this  branch  of  his 
misdeeds.  The  one  acts  upon  fear  in  all  cases;  the 
other  generally  on  hope.  We  see  this  man  in  all  his 
power  and  splendor,  inviting  an  obscure  stranger  to  his 
quarters ;  he  proposes  several  questions.  Knox  shows 
reluctance  in  answering  them  ;  he  then  tenders  Knox  his 
service,  his  influence,  patronage,  and  finally  one  hundred 
or  one  hundred  and  fifty  dollars.  Finding  all  these  un- 
availing, he  resorts  to  the  influence  of  terrors.  He  is 
interrogated  by  Hall,  who  threatens  imprisonment  and 
transportation,  in  case  of  disobedience.  A  list  of 
printed  interrogatories  is  exhibited,  antl  Knox  is  re- 
quired to  submit  to  examination  on  them. 

This  evil  and  corrupting  practice  of  affidavits  is  but 
little  understood.  My  friend  Mr.  Wirt  stigmatized  them 
justly,  the  other  day,  as  tending  to  the  worst  of  pur- 
poses, always  containing  the  language  and  the  coloring 
of  a  biased  draftsman,  and  never  telling  the  whole 
truth.  When  a  witness  is  examined  ex  parte  by  counsel, 
everything  that  makes  for  his  employer  is  carefully 
culled  out  and  committed  to  writing,  without  the  dross 
of  what  may  be  for  his  adversary's  advantage.  If  a  wit- 
ness should  know  much  for  the  accused,  and  nothing  for 
the  government,  he  would  be  passed  by  of  course. 
These  affidavits  are  sent  to  the  attorney.  He  is  armed 
now  with  a  great  bundle  of  them.  So  many  daggers 
put  to  the  bosoms  of  the  witnesses,  as  they  successively 
appear,  could  not  be  more  inauspicious  to  truth.  Should 
a  witness  be  cross-examined,  to  give  a  different  com- 


MO  TION  FOR  AN  ATT  A  CHMENT.  3  2  5 

plexion  to  a  fact  contained  in  his  affidavit,  the  terrifying 
writing  needs  only  to  be  held  up  at  the  bar,  and  the 
naked  exhibition  of  such  spectacle  eloquently  proclaims 
his  destiny,  if  he  vary  in  the  least  from  that  fatal  paper. 
He  is  told,  "  If  you  go  a  step  out  of  this  paper,  perjury 
is  the  consequence,  and  your  ears  shall  come  off."  The 
important  right  of  cross-examination  is  useless  in 
such  a  case.  To  be  confronted  by  the  accused,  is 
nothing,  when  the  witness  is  confronted  by  his  affi- 
davit. 

The  other  means  practiced  by  General  Wilkinson  ap- 
pertain to  the  privilege  of  the  witness,  and  the  liberty 
of  the  citizen.  This  work  of  unprovoked  tyranny,  be- 
gan on  a  Sunday.  Under  color  of  law,  Knox  was  im- 
prisoned and  transported  for  the  crimes  of  having  eyes 
so  see,  and  ears  to  hear.  He  was  not  permitted  to  ob- 
tain from  his  lodgings  the  clothing  necessary  to  cleanli- 
ness and  health.  The  sagacious  and  patriotic  judge  had 
as  much  reason  to  drag  Wilkinson  from  the  pinnacle  of 
his  greatness  and  pomposity,  and  to  commit  and  trans- 
port him  after  he  had  hung  back,  until  "  his  friends 
trembled  for  his  fame,"  as  Mr.  Knox. 

The  habeas  corpus  act  in  England,  was  produced 
by  the  unlawful  transportation  of  offenders  for  trial. 
That  measure  has  been  marked  by  all  the  great  measures 
of  the  resisting  colonies  and  of  the  old  Congress,  as  one 
of  the  most  usual  and  most  grievous  concomitants  of 
arbitrary  authority.  The  legislature  of  Massachusetts,  in 
1769,  were  excited  to  what  were  said  in  the  mother  coun- 
try to  be  seditious  resolutions,  against  the  use  of  such  an 
expedient  by  parliamentary  authority.  The  articles  of 
confederation  ;  the  various  addresses  of  Congress  to  the' 
people  of  England,  Ireland,  and  to  the  Canadians ;  the 
petitions  to  the  throne,  and  the  remonstrances  to  the 
parliament ;  the  Declaration  of  Independence,  and  the 
preamble  to  the  constitution  of  Virginia  ;  all  enumerated 
among  the  acts  of  royal  misrule,  justifying  revolt,  the 
oppressive  one  of  transporting  offenders  for  trial.  The 
nation  waded  through  blood  an.d  slaughter,  to  rescue  us 
from  this  power ;  but  now  it  is  exercised  as  an  act  of 
course,  not  indeed  in  all  cases,  upon  a  criminal  by  legis- 
^ative  authority,  but  upon  a  witness  at  the  pleasure  of  a 


326  TRIAL  OF  AARON  BURR. 

military  chief,  whose  delinquency  in  attendance  was  real, 
while  Knox's  was  imaginary. 

But  why  all  this  complaint  about  poor  Knox?  He  is 
nothing  but  a  poverty-stricken,  obscure  individual.  The 
vague  and  whimsical  phantasy  of  equality,  that  kindled 
enthusiasm  in  former  times,  is  now  too  ridiculous  for  our 
cares.  The  abuses  of  Knox  are  of  no  moment.  The  sun 
rises  and  sets  as  usual.  GeneraL  Wilkinson  takes  his 
coffee  in  the  morning,  and  reposes  himself  on  his  sofa  in 
the  evening.  We  are  happy  and  content  at  our  homes, 
and  things  in  general  go  on  as  before.  It  is  a  morti- 
fying thought,  that  the  enemies  of  our  happy  form  of 
government,  may  now  triumph  in  the  acquiescent  sur- 
render of  the  rights  which  it  was  instituted  to  secure. 
They  may  boast  that  liberty  has  been  scourged  with 
relentless  fury  and  perseverance  ;  that  the  revolution  has 
been  shorn  of  the  brightest  of  its  beams,  with  the  hear- 
tiest applauses  of  those  in  whose  presence  the  offenses 
of  a  tyrant  have  been  presented  for  punishment.  I  feel 
more  pain  and  solicitude  on  this  subject  as  a  friend  to 
the  present  administration,  than  I  do  as  counsel  for  Mr. 
Burr.  I  could  humble  myself  to  beg  of  the  gentlemen 
in  the  prosecution  to  save  the  glory  of  our  executive 
from  the  tarnish  of  praise  and  impunity  to  General  Wilkin- 
son. If  they  will  not  grant  my  prayer,  I  must  address  it 
to  you,  sir.  I  hope  and  believe,  that  the  chief  magistrate 
of  our  country  is  a  stranger  to  what  has  passed  and  is  pass- 
ing here.  His  generous,  manly  soul  would  surely  disdain 
all  the  petty  larceny  means  which  have  been  used  to 
kidnap  testimony,  betray  confidence,  and  induce  perju- 
ries ;  it  would  equally  revolt  at  the  wanton  violation  of 
the  most  sacred  of  our  laws  and  chartered  rights.  Such 
a  system  can  not  characterize  the  noblest  administration 
that  ever  existed. 

Let  but  this  daring  act  pass  unpunished,  and  we  cease 
to  be  what  we  were.  If  a  citizen  could  be  imprisoned 
for  three  days,  he  may  for  three  years.  If  he  could  be 
transported  to  Richmond,  he  may  to  India.  If  one 
man  can  be  so  imprisoned  and  transported,  so  may  a 
thousand. 

A  witness  was  asked  whether  Knox  had  not  his  liberty 
on  the  voyage  ?  Yes,  was  the  answer.  How  precious 


f  MOTION    FOR     AN    ATTACHMENT.      327 

the  boon !     He  was  at  perfect  liberty  to  jump  into  the 
sea  whenever  he  pleased  ! 

The  attempt  to  make  Mr.  Gaines  the  scape-goat  of 
this  confederacy  (he  deserves  a  better  fate)  is  only 
equalled  by  the  atrocity  of  the  confederacy  itself. 

We  find  that  Mr.  Wilkinson  was  inquisitor  and  transpor- 
ter-general, without  scruple  or  disguise,  until  he  was  about 
to  come  to  the  United  States.  To  borrow  an  idea  from 
Mr.  Mac  Rae,  the  noise  that  'had  been  made  about  his 
misdeeds,  had  taught  him  cunning.  In  the  courts  of 
New  Orleans,  he  could  make  the  tribunal  bow  and  trem- 
ble, by  a  parade  of  magnificent  nonsense.  To  avoid  his 
own  humiliation  in  a  freer  climate,  this  farce,  in  which  a 
mock  judge  and  a  military-civil-sea-marshal,  without 
oath,  bond  or  compensation  were  to  perform  their  parts, 
was  devised.  It  is  too  clear  that  Wilkinson  was  the  wire- 
worker  behind  the  curtain,  by  which  the  wicked  catering 
and  gambols  of  mimic  magistracy  were  played.  I  pity  the 
condition  of  a  subordinate  military  officer  bound  to  passive 
obedience.  Mr.  Gaines  was  a  worthy,  duped  young  man. 
I  was  fond  of  the  honest  appearance  he  made.  The 
candor  of  his  testimony  made  it  more  a  subject  of  grief 
and  indignation,  that  the  contrivance  should  be  to  put 
the  whole  responsibility  on  him.  The  introduction  of 
the  lawyer,  to  complicate  the  disguise,  is  Another  feature 
in  the  picture.  I  hope,  for  the  honor  of  the  profession, 
that  there  is  some  mistake  as  to  the  ^>art  he  acted. 
Wilkinson  is  to  be  discerned  through  every  part  of  the 
cobweb.  He  makes  the  affidavit  ;  he  sets  the  lawyer  to 
work  ;  his  military  officer  becomes  a  deputy  of  the  mar- 
shal—  to  leave  his  situation  without  the  leave  of  the  com- 
mander-in-chief ;  a  sergeant  is  the  deputy  of  that  deputy  ; 
the  captain  on  board -is  under  the  direction  of  the  gen- 
eral ;  to  his  care  Captain  Gaines  commits  Knox  through 
the  sergeant;  the  military  purse  yields  the  money  given 
to  the  witness  ;  the  vessel  taken  up  by  Wilkinson  conveys 
him,  and  'Mr.  Gaines  owns,  that  if  the  general  on  the 
passage  had  directed  Knox  to  be  put  in  irons,  the  order 
would  have  been  instantly  obeyed.  What  !  a  deputy 
marshal,  as  such,  to  obey  the  orders  of  a  military  com- 
mander!  The  insidious  attempt  at  Hampton  Roads, 
first  involuntarily  made  by  Mr.  Gaines,  and  afterwards 


328  TRIAL  OF  AARON  BURR. 

repeated  by  General  Wilkinson,  to  seduce  an  acknowl- 
edgment  that  the  civil  authority  had  transported  the 
witness,  may  be  connected  with  the  other  proofs.  But 
the  demand,  by  General  Wilkinson,  of  Knox's  parol  ot 
honor  to  come  to  Richmond  as  the  condition  of  his  en- 
largement, would  be  decisive  on  the  present  question,  if 
it  admitted  of  doubt. 

But  you  are  gravely  asked  by  Mr.  Mac  Rae  to  pro- 
nounce that  General  Wilkinson  deserves  well  of  his 
country  for  all  these  his  patriotic  acts.  What,  in  other 
times,  and  in  other  places,  would  subject  a  man  to  be 
suspended  between  the  heavens  and  the  earth,  from 
whence  his  spirit  should  flee  forever,  now  calls  forth  the 
highest  panegyric.  I  heard  a  compliment  like  the  pres- 
ent from  the  counsel,  when  General  Wilkinson  was  here 
on  yesterday.  I  looked  upon  him  and  witnessed  a  smile, 
when  the  occasion  was  better  adapted  to  a  groan.  It  was 
a  smile  of  the  ghastly  kind.  It  seemed  to  be  of  that  con- 
vulsive sort  which  distorts  the  face  of  the  dying.  Per- 
haps General  Wilkinson  took  a  retrospect  and  felt  the 
compliment  to  be  a  reproach.  Thus  prejudice  leads  gen- 
tlemen to  praise  acts  of  atrocity.  This  subject  has  been 
treated  with  singular  levity  by  the  gentlemen  in  the  pros- 
ecution. They  have  not  ventured  to  justify  the  com- 
mitment of  Knox.  The  furthest  that  Mr.  Mac  Rae 
ventured,  was'  to  risk  the  supposition  that  the  act  of 
congress  was  of  doubtful  application,  and  might  possibly 
apply.  He  in  this  tacitly  yields,  that  there  is  no  justify- 
ing the  conduct  pursued  in  the  commitment.  The  gen- 
tleman who  spoke  last,  reminds  us,  that  "  the  sins  of  the 
fathers  ought  not  to  be  visited  on  the  children."  I  say 
then,  that  the  sins  of  the  principals  ought  not  to  be 
visited  on  the  subalterns. 

Mr.  Mac  Rae  concludes  with  reminding  the  court,  that 
Mr.  Burr  had  enjoyed  privileges  that  no  one  under  pros- 
ecution before  him  had  ever  enjoyed.  He  said,  too,  that 
you  were  perfectly  right  to  hear  us  on  this  question.  I 
submit  to  him  whether  the  first  remark  were  just  or  re- 
spectful to  the  court  ?  In  the  latter  point  he  differs  from 
another  gentleman  on  the  same  side,  who  has  struggled 
much  to  prevent  us  from  addressing  you. 

It   only  now  remains   for   me  to  prove  that  your  juris- 


GRAND    JURY    INDICT    BURR.          329 

diction  is  commensurate  with  our  purpose.  The  I4th 
section  of  the  judicial  act  authorizes  the  court  to  issue 
all  writs  not  specially  authorized,  for  the  more  perfect 
exercise  of  the  powers  vested  in  it.  The  power  of  com- 
pelling attendance  and  securing  privilege,  can  not  be 
exercised  in  perfection  without  a  power  of  attaching  for 
contempts  in  the  one  case  or  the  other.  The  district 
courts  of  Virginia  constantly  exercise  tnis  right  of  over- 
looking the  purity  of  the  streams  of  their  justice,  through 
all  its  branchings,  without  the  district  as  well  as  within. 
The  right  of  attachment  overreaching  the  limits  of  the 
state,  must  result  as  incidental  to  the  emanation  of  the 
subpoena  to  other  states.  But  the  rioting  ofi  lawless 
power  continued  from  New  Orleans  to  Richmond. 
When  it  entered  on  the  seas  it  was  within  the  regular 
limits  of  your  authority. 

In  a  view  to  the  privilege  of  the  witness  this  motion 
must  be  sustained,  if  we  be  deceived  in  all  our  other 
grounds.  What  means  the  privilege,  unless  it  be,  that 
he  shall  have  protection  from  abuse?  Is  it  to  assist  in 
this  privilege  to  imprison  him  ?  Is  the  privilege  to 
exclude  him  from  all  his  rights,  and  put  him  at  the 
mercy  of  land  and  sea  jailers?  If  this  be  the  enviable 
advantage  of  privilege,  General  Wilkinson  will  deserve 
well  of  his  country  for  assisting  to  maintain  it. 

Knox  was  summoned  before  any  of  this  violence  was 
used  towards  him.  From  the  moment  that  he  was  sum- 
moned, he  was  under  your  protection.  The  naked  ser- 
vice of  a  summons  must  have  proved  that  your  powers 
reached  not  beyond  a  summons  until  there  were  default. 
It  is  absurd  to  suppose,  that  what  this  court  could 
not  do  for  itself,  a  magistrate,  no  way  connected  with 
it,  could  unasked  and  officiously  do  for  it. 

I  refer  the  court,  without  comment,  to  Supplement 
to  Viner's  Abridgment,  225,  and  3  Hawkins,  275,  on  the 
subject  of  contempts  of  the  court. 

When  Mr.  Botts  was  speaking  [being  about  two 
o'clock]  the  grand  jury  entered,  and  Mr.  Randolph,  the 
foreman,  addressed  the  court,  and  stated  that  they  had 
agreed  upon  several  indictments,  which  he  handed  in  at 
the  clerk's  table.  The  clerk  read  the  endorsements 
upon  them  in  the  following  terms  : 


330  TRIAL    OF    AARON    BURR. 

An  indictment  against  Aaron  Burr  for  treason — "A 
true  bill." 

An  indictment  against  Aaron  Burr  for  a  misdemeanor 
—"A  true  bill." 

An  indictment  against  Herman  Blannerhasset  for  trea- 
son— "  A  true  bill." 

An  indictment  against  Herman  Blannerhasset  for  a 
misdemeanor — "  A  true  bill." 

Mr,  Randolph  then  continued  :  May  it  please  the 
court,  Although  the  grand  jury  have  returned  these 
bills,  they  have  still  other  subjects  for  their  considera- 
tion, and  have  adjourned  themselves  to  meet  -to-morrow 
at  ten  o'clock. 

After  "Mr.  Botts  concluded  his  argument,  Mr.  Burr  ad- 
dressed the  court,  and  observed,  that  as  bills  had  been 
found  against  him,  it  was  probable  the  public  pros- 
ecutor would  move  for  his  commitment ;  he  would,  how- 
ever, suggest  two  ideas  for  the  consideration  of  the 
court ;  the  one  was,  that  it  was  within  their  discretion 
to  bail  in  certain  cases,  even  when  the  punishment  was 
death  ;  and  the  other  was,  that  it  was  expedient  for  the 
court  to  exercise  their  discretion  in  this  instance,  as  he 
should  prove,  that  the  indictment  against  him  had  been 
obtained  by  perjury. 

Mr.  Hay  moved  for  the  commitment  of  Aaron  Burr. 
He  stated  that  if  the  court  had  the  power  to  bail  by 
the  33rd  section  of  the  judicial  act,  it  was  only  to 
be  exercised  according  to  their  sound  discretion  ;  and 
that  the  prisoner  was  not  to  demand  bail  as  matter  of 
right,  because  the  court  was  authorized  to  grant  it,  but 
by  his  making  out  an  adequate  case,  and  showing  that 
he  was  entitled  to  it.  He  quoted  4  Blackstone's  Com- 
mentaries, p.  298,  to  prove  that  this  discretion  ought  to 
be  deliberately  and  cautiously  exercised. 

Mr.  Martin. — The  counsel  for  the  prosecution  have, 
then,  admitted  the  right  of  the  court  to  give  bail,  accor- 
ding to  its  discretion. 

Mr.  Mac  Rae  did  not  understand  from  the  judicial 
act,  that  the  discretion  was  to  be  exercised  at  this  stage 
of  the  business,  but  only  at  the  time  of  making  thj 
arrest. 

Mr.  Martin. — I  can  hardly  suppose  that  this  court  has 


MOTION    TO    COMMIT.  331 

less  power  than  the  court  of  king's  bench  in  England, 
which  certainly  possesses  this  authority,  according  to  2 
Hale,  pp.  129,  134. 

Mr.  Wirt  was  extremely  solicitous  to  do  anything 
compatible  with  his  duties,  which  might  soften  the  situ- 
ation of  the  prisoner,  and  if  the  court  had  the  discre- 
tion, he  did  not  wish  them  to  restrict  it ;  but  he  did  not 
perceive  the  analogy  which  had  been  drawn  between 
this  court  and  the  court  of  king's  bench.  The  powers 
of  that  court  grew  out  of  the  common  law  of  England, 
whereas  the  powers  of  this  court  were  defined  by  a  stat- 
ute of  our  country.  What  says  the  33rd  section  of  the 
judicial  act  ?  "  Upon  all  arrests  in  criminal  cases,  bail 
shall  be  admitted  ;  except  where  the  punishment  may 
be  death,  in  which  case  it  shall  not  be  admitted  but  by 
the  supreme  or  a  circuit  court,  or  by  a  justice  of  the  su- 
preme court,  or  a  judge  of  a  district  court,  who  shall  ex- 
ercise their  discretion  therein,  regarding  the  nature  and 
circumstances  of  the  offense,  and  of  the  evidence  and  the 
usages  of  law."  Is  not  this  inquiry  by  the  court  stopped, 
said  Mr.  Wirt ;  is  not  the  evidence  and  testimony  stopped, 
when  it  is  now  locked  up  by  the  finding  of  the  grand 
jury?  Would  it  be  right  for  this  court  to  go  into  all  the 
merits  of  the  case,  which  this  clause  evidently  requires, 
before  the  court  can  exercise  this  discretion  ?  Will  the 
court  go  into  the  investigation  oj"  the  evidence,  and  thus 
throw  itself  into  collision  with  the  grand  jury?  It  is  ob- 
vious from  these  considerations,  as  well  as  from  the 
words  of  the  law,  that  such  a  discretion  does  not  exist 
at  this  stage  of  the  business,  but  only  at  the  time  of  arrest. 

Mr.  Wickham. — The  counsel  for  the  United  States  ex- 
press their  readiness  to  accommodate  Mr.  Burr,  yet  act 
otherwise.  If  the  court  of  king's  bench  possess  this  au- 
thority, shall  it  be  contended  that  this  court  is  without 
it  ?  Shall  it  be  said  that  the  liberties  of  the  people  of 
this  country  are  not  as  well  secured  as  those  of  Great 
Britain  ?  that  a  British  subject  has  greater  privileges  than 
an  American  citizen?  It  is  said,  however,  that  this  court 
grows  not  out  of  the  common  law,  but  out  of  our  stat- 
utes ;  but  will  it  be  said,  that,  when  this  court  has  once 
been  constituted,  it  does  not  proceed  according  to  the 
established  jurisprudence  ;  that  is,  the  common  law. 


332  TRIAL     OF    AARON    BURR. 

There  can  be  no  question  but  that  a  state  district  court 
can  bail,  even  in  capital  cases.  Will  this  court,  it  is  asked, 
place  itself  in  opposition  to  the  grand  jury?  No,  sir,  it 
will  not :  and  Mr.  Wirt  certainly  forgets  that  the  court  is 
to  hear  both  sides  of  the  evidence;  whereas,  the  grand 
jury  heard  one  side  only,  and  indeed  a  part  only  of  that 
side ;  for  had  the  United  States  attorney  sent  up  all  the 
witnesses,  whose  names  appear  at  the  foot  of  the  indict- 
ment, very  different  would  have  been  the  result, of  their 
inquiries.  The  ground  which  we  take  is  this;  that  the 
grand  jury  have  found  their  bill  upon  the  testimony  of  a 
perjured  witness;  and  if  the  court  were  to  bail  Mr.  Burr, 
would  it  not  be  justly  inferred,  that  they  had  not  set 
themselves  up  in  opposition  to  the  grand  jury,  but  that 
they  had  been  furnished  with  lights,  which  had  been  de- 
nied to  that  jury?  "  Upon  arrests,"  signifies  in  all  cases, 
where  there  has  been  an  arrest.  The  case  in  Dallas  comes 
fully  up  to  the  point. 

Mr.  Botts  said,  that  if  the  common  law  did  not  enable 
the  court  to  bail,  it  did  not  enable  them  to  commit. 

Chief  Justice. — Mr.  Martin,  have  you  any  precedent, 
where  a  court  has  bailed  for  treason,  after  the  finding  of 
a  grand  jury,  on  either  of  those  grounds;  that  the  testi- 
mony laid  before  the  grand  jury  had  been  impeached  for 
perjury,  or  that  other  testimony  had  been  laid  before  the 
court,  which  had  not  been  in  the  possession  of  the  grand 
jury? 

Mr.  Martin  said,  that  he  had  not  anticipated  this  case, 
and  had  not,  therefore,  prepared  his  authorities ;  but  he 
had  no  doubt  that  such  existed. 

Mr.  Burr. — Two  distinct  questions  have  been  blended 
in  this  discussion,  which  ought  to  have  been  kept  separ- 
ate. First,  Whether  this  court  have  the  right  to  bail 
according  to  its  discretion  ;  and  secondly,  Whether  it 
were  expedient  to  exercise  its  right  in  the  present  in- 
stance ?  If  the  court  have  no  discretion,  it  is  unnecessary 
to  produce  evidence.  That  question*ought,  therefore,  to 
be  previously  settled. 

Mr.  Hay  observed,  .that  when  he  first  addressed  the 
court,  he  was  of  opinion,  that  the  circuit  court  had  this 
power,  having  been  misled  by  a  very  transient  conversa- 
tion with  the  chief  justice,  on  the  first  examination  of 


MOTION     TO     COMMIT.  333 

Mr.  Burr;  that  he  had,  however,  considered  this  subject 
more  maturely,  and  the  more  he  thought  of  it,  the  more 
he  was  convinced  that  Aaron 'Burr  was  not  privileged  to 
demand  bail.  That  he  would  feel  no  regret  if  the  court 
could  bail,  but  he  thought  they  could  not ;  that  it  was  in- 
cumbent on  the  prisoner  to  show  the  law  which  author- 
ized his  being  bailed  ;  that  the  question  was  to  be  decid- 
ed by  the  common  law,  by  the  acts  of  Congress,  or  by 
the  acts  of  Virginia.  It  could  not  derive  the  authority 
from  the  common  law,  because  this  court  is  of  a  recent 
origin,  deriving  its  power  not  only  from  a  late  law,  but  a 
lately  created  government ;  and  it  has  no  authority  but 
from  an  established  law.  Does,  then  (said  Mr.  Hay),  the 
law  which  established  this  court,  expressly  convey  this 
power  ?  [Here  he  read  the  33rd  section  of  the  judicial 
act.]  Now,  how  are  the  court  to  attend  to  the  nature 
and  circumstances  of  the  case  and  of  the  evidence  ?  Will 
they  require  all  the  evidence  to  be  before  them,  which 
has  just  occupied  the  attention  of  the  grand  jury  for 
seven  or  eight  days  ?  Mr.  Wirt's  argument  on  this  point 
is  conclusive.  The  law  too  is  applicable  to  a  prisoner 
only  at  the  time  of  his  arrest,  and  not  of  an  indictment 
being  found  against  him  ;  in  the  last  case,  the  situation 
of  the  accused  becomes  still  more  precarious ;  the  dan- 
ger which  he  apprehends,  comes  nearer  and  nearer,  and 
the  temptation  to  violate  his  recognizance,  becomes  much 
greater  than  at  the  earlier  steps  of  the  prosecution.  [Mr. 
Hay  then  referred  to  the  case  of  Bedinger  v.  the  Com- 
monwealth of  Virginia,  decided  by  the  court  of  appeals, 
where  that  court  refused  to  review  the  errors  of  a  dis- 
trict court,  in  criminal  cases,  because  no  act  of  assembly 
gave  them  the  power.] 

No  man  will  contend  that  the  common  law  is  in  force 
in  the  courts  of  the  United  States.  As  soon  might  you 
assert  the  validity  of  the  laws  of  the  Cape  of  Good 
Hope  or  of  Turkey.  It  was,  therefore,  ridiculous  to 
compare  the  organization  of  the  court  of  king's  bench 
with  that  of  the  present  court.  As  to  the  complaint  of 
Mr.  Wickham,  that  by  this  doctrine  an  American  citi- 
zen would  stand  on  worse  grounds  than  a  British  sub- 
ject, it  is  unavailing.  Perhaps  courts  of  justice  would 
even  be  more  disposed  to  bail  for  treason  under  such  a 


334  TRIAL     OF    AARON    BURR 

government  as  that  of  Great  Britain,  than  under  our 
own,  where  the  power  of  the  government  falls  so  rarely 
and  so  lightly  upon  thepeo'ple.  Were  even  the  common 
law  in  force  in  the  United  States,  it  would  have  no  rela- 
tion to  the  organization  of  our  courts. 

The  power  of  bailing  is  neither  derived  from  the  com- 
mon law,  nor  the  act  of  congress ;  nor  is  it  deducible 
from  the  laws  of  Virginia.  In  cases  affecting  life,  the 
prisoner  is  not  entitled  to  bail  by  our  laws.  Rev. 
Code,  pp.  63,83,  411.  In  the  two  former  pages,  two 
judges  of  the  general  court  have  the  power ;  but  it 
can  not  be  inferred  that  this  court  therefore  has  it. 

Mr.  Wirt. — I  have  stated  that  the  powers  of  the 
caurt  of  king's  bench  are  not  applicable  to  this  case, 
because  that  court  is  the  creature  of  the  common  law, 
whose  powers  are  of  ancient  date,  and  have  been  grow- 
ing up  from  time  to  time  ;  whereas  this  court  is  recent, 
and  its  powers  fixed  and  defined  by  law.  There  is 
another  great  difference.  The  powers  of  the  court  of 
king's  bench  take  their  origin  in  a  fiction.  It  is  sup- 
posed to  be  held  coram  ipso  rege !  In  its  origin,  the 
king  himself  sat  there,  and  he  is  still  supposed  to  sit. 
Treason  was  a  crime  against  his  dignity  ;  he  might  bail 
for  it ;  and  the  same  power  belongs  to  the  judges  who 
represent  his  person.  But  how  is  it  with  us?  Treason 
is  an  offense  against  the  people  of  this  country.  And 
have  the  people  ever  sat  here  for  the  administration  of 
justice?  Are  the  judges  of  this  court  invested  with  the 
powers  of  the  people  ?  But  on  the  supposition  that 
this  fiction  does  exist,  is  not  the  power  of  bailing  re- 
moved by  a  positive  law  ?  Does  not  the  act  of  congress 
expressly  take  it  from  the  court  ?  By  the  laws  of  Vir- 
ginia, in  cases  of  offenses  punishable  in  life  and  limb, 
bail  is  only  admitted  where  there  is  but  a  light  suspicion 
of  guilt.  If  some  of  the  witnesses  be  perjured,  that 
does  not  prove  that  the  indictment  is  found  on  their  evi- 
dence. There  has  never  been  an  instance  of  bailing 
after  a  true  bill  found.  The  act  of  congress  enables  the 
court  to  bail  only  on  arrests,  after  examination  of  the 
circumstances,  the  evidence  and  law  of  the  case.  Can 
you  bail,  therefore,  on  a  partial  view  of  the  evidence  ? 

Mr.   Wickham. — Two  indictments  have  been  found  for 


MOTION     TO     COMMIT.  335 

treason ;  one  against  Mr.  Burr,  and  the  other  against 
Blannerhasset.  If  the  latter  were  now  to  come  into 
court,  he  would  be  bailed,  according  to  Mr.  Wirt's  -dis- 
tinction, because  not  previously  arrested  ;  whereas 
Mr.  Burr  would  be  divested  of  the  very  same  priv- 
ilege, though  he  was  indicted  for  the  very  same  crime. 

Mr.  Hay  said  that  the  judges  of  the  general  court  in 
Virginia  have  a  copy  of  the  record,  with  evidence  in- 
cluded, before  them,  to  enable  them  to  judge  whether 
they  ought  to  bail  in  certain  cases  ;  but  that  this  court, 
if  they  had  the  power,  could  not  let  to  bail  without  ex- 
amining all  the  witnesses. 

Mr.  Randolph  expatiated- on  this  subject  at  consider- 
able length,  and  with  great  ingenuity.  He  particularly 
•  contended,  that  the  power  of  admitting  to  bail  was  inci- 
dent to  every  court  ;  that  the  power  was  implied  in  the 
term  "  court."  That  it  was  as  absolutely  necessary  for 
the  happiness  of  the  people,  that  courts  should  possess 
this  power,  as  it  was,  that  they  should  have  the  right  of 
committing  persons  accused,  for  their  safe  keeping,  in  order 
to  be  regularly  tried.  That  the  common  law  must  be 
received  to  a  certain  extent ;  that  every  judge  and  court 
had  the  right  to  bail  persons  indicted  before  them  ;  and 
that  it  would  be  an  extreme  hardship  to  confine  in  a  dun- 
geon, a  person  who  could  clearly  prove  that  he  was  not 
guilty  of  the  offense  charged  against  him.  That  the 
counsel  for  the  prosecution  occasioned  this  lengthy  dis- 
cussion by  moving  to  commit  Mr.  Burr;  and  that  time 
was  of  no  consequence  compared  to  liberty. 

Mr.  Martin  protested  against  the  ingenious  fiction  of 
Mr.  Wirt,  as  he  called  it.  He  challenged  him  to  name 
any  king,  from  the  days  of  King  Arthur  to  the  present 
time,  who  either  did,  or  would,  sit  in  the  court  of  king's 
bench.  That  the  act  of  congress  only  defined  the 
powers  of  individual  magistrates  out  of  court,  but  took 
away  no  power  from  them  as  a  court.  That  bailing  was 
incident  to  commitment,  and  co-extensive  with  the  jur- 
isdiction of  the  court  over  crimes.  ' 

After  a  considerable  desultory  discussion  on  this  point, 
the  Chief  Justice  declared  that  the  act  of  congress,  in 
express  terms,  enabled  the  court  to  bail  a  prisoner  ar- 
rested for  treason.  That  there  was  no  distinction 


336  TRIAL     OF    AARON    BURR. 

between  treason  and  other  criminal  cases,  as  to  the  power 
to  bail  upon  arrests;  but,  that  an  arrest  might  be  after  a 
finding  by  a  grand  jury  ;  in  which  case,  the  finding  of 
the  grand  jury  would  be  the  evidence  on  which  the 
court  would  have  to  judge  whether  the  party  arrested 
ought  to  be  bailed.  That  they  were  to  exercise  their 
discretion  "  according  to  the  nature  and  circumstances  of 
the  offense,  and  of  the  evidence  and  usages  of  law*" 
That  "usages  of  law"  were  to  be  found  in  the  common 
law,  and  the  practice  of  courts;  but  that  he  doubted  ex- 
tremely, whether  the  court  had  the  right  to  bail  any 
person,  after  an  indictment  for  treason  had  been  found 
against  him  by  a  grand  jury;  especially  in  a  case  like  the 
present,  where  the  government  was  ready  with  its  testi- 
mony, and  there  was  no  extraordinary  circumstance  (as 
an  alibi  clearly  proved)  to  repel  the  effect  of  the  finding 
of  the  jury,  and  that  he  wished  authorities  produced  to 
satisfy  the  court  that  it  had  the  power. 

Mr.  Burr  said  that  if  the  court  thought  it  had  the 
power  to  bail  in  any  case  after  a  bill  found,  it  would  be 
then  necessary  to  show  that  it  ought  to  exercise  its  dis- 
cretion in  this  instance.  That  the  finding  of  the  jury 
was  founded  on  the  testimony  of  a  perjured  witness. 
That  General  Tupper  would  prove,  that  there  had  been 
no  such  resistance  to  his  authority  as  had  been  stated  by 
that  witness ;  and  that  though  this  circumstance  had 
been  mentioned  to  the  prosecutor  by  General  Tupper, 
he  had  not  been  sent  up  to  the  grand  jury. 

Mr.  Mac-  Rae. — General  Tupper  has  made  no  such 
communication  to  me. 

Mr.  Hay. — Though  I  had  a  conversation  with  General 
Tupper,  I  do  not  exactly  recollect  what  it  was.  The 
truth  is,  that  I  have  carefully  avoided  conversing  with 
the  witnesses  of  the  United  States  (except  General 
Wilkinson).  General  Tupper  made  application  to  me 
for  permission  to  go  away;  but  I  said,  that  I  would,  for 
no  consideration,  submit  to  the  imputation  of  consent- 
ing to  the  departure  of  any  of  the  witnesses.  He  was 
not  sent  up  to  the  grand  jury,  because  he  was  not  con- 
sidered as  a  material  witness. 

Mr.  Wirt. — He  has  made  no  such  communication  to 
me ;  and  I  take  it  upon  me  to  assert,  that  the  resistance 


MOTION     TO     COMMIT.  337 

to  General  Tupper  was  not  the  treason  on  which  the  in- 
dictment has  been  found. 

Mr.  Wickham. — Suppose  a  man  were  indicted  for  mur- 
der, committed  at  some  distance  from  this  city,  and  a 
grand  jury  had  found  a  true  bill  against  him  ;  but  it 
could  be  proved,  by  every  man  in  the  city,  that  he  was 
at  the  moment -when  the  offense  was  said  to  have  been 
committed,  walking  in  the  streets:  would  such  a  finding 
by  the  grand  jury  preclude  a  court  from  bailing  him  ? 
The  constructive  murder  in  that  case  is  of  the  same 
stamp  as  the  constructive  treason  of  Mr.  Burr  in  this 
case,  who  is  indicted  for  an  act  said  to  be  done  in  Blan- 
nerhasset's  island,  where  he  was  said  to  be  present,  al- 
though he  was  at  a  considerable  distance  from  the 
place. 

Mr.  Wirt. — Why  should  evidence  be  produced  to 
prove  the  perjury  of  a  witness?  why  look  to  the  indict- 
ment itself  ^Dr  a  proof  of  its  own  fallacy,  when  the 
requisitions  of  the  court  have  not  yet  been  satisfied  ? 
The  court  wanted  authorities  to  prove,  that  in  such  a 
case  as  this,  it  had  a  discretionary  right  to  bail  "  accord- 
ing to  the  usages  of  law." 

Mr.  Burr  wished  to  know,  whether  the  court  would  go 
into  testimony  extrinsic  to  the  indictment. 

The  Chief  Justice  had  never  known  a  case  similar  to 
the  present,  where  such  an  examination  had  taken  place. 

Mr.  Martin  would  produce  authorities,  if  he  had  time 
allowed  to  him. 

Mr.  Randolph  drew  an  analogy  between  this  and  the 
case  of  a  coroner's  inquest. 

Mr  Wirt  said  there  was  no  apposite  analogy  between 
them. 

The  Chief  Justice  insisted  upon  the  necessity  of  pro- 
ducing adjudged  cases,  to  prove  that  the  court  could  bail 
a  party,  against  whom  an  indictment  had  been  found. 

Mr.  Burr  did  not  wish  to,  protract  the  session  of  the 
court  to  suit  his  own  personal  convenience.  There  was 
no  time  at  present  to  look  out  for  authorities. 

The  Chief  Justice  observed,  that  he  was  then  under 
the  necessity  of  committing  Mr.  Burr. 

Mr.  Burr  stated,  that  he  was  willing  to  be  committed, 
but  hoped  that  the  court  had  not  forestalled  its  opinion. 

22 


33§  TRIAL     OF    AARON    BURR. 

Chttf  Justice. — I  have  only  stated  my  present  impres- 
sions. This  subject  is  open  for  argument  hereafter.  Mr* 
Burr  stands  committed  to  the  custody  of  the  marshal. 

He  was  accordingly  conducted  to  the  jail. 

THURSDAY,  June  25th,  1807. 

After  a  writ  of  habeas  corpus  was  granted  to  bring  up 
the  body  of  Mr.  Burr,  General  Andrew  Jackson  from 
Tennessee,  and  sundry  other  witnesses  were  sworn,  and 
sent  to  the  grand  jury. 

Mr.  Hay  addressed  the  court. — We  were  reluctant  the 
other  day  to  discuss  this  subject.  (It  is  not  a  question  ; 
for  it  does  not  deserve  to  be  so  called.)  We  wished  the 
court  to  decide  on  the  testimony  ;  but  counsel  would  have 
an  argument.  We  have  repeatedly  proposed  to  them  to 
close  the  arguments.  I  thought,  and  still  think,  this 
motion  an  obstruction  to  public  justice,  ^tvish  to  go  on 
with  the  business  of  the  court,  and  this  motion  pre- 
vents me.  Gentlemen  have  determined  to  persevere  ; 
but  they  have  not  stated  the  object,  they  have  not  spec- 
ified the  act  of  which  they  complain.  If  they  had  stated 
in  their  motion  the  fact  said  to  be  an  obstruction  of  jus- 
tice, the  absurdity  would  have  been  apparent.  By  avoid- 
ing a  specification  they  get  over  the  difficulty,  and  are 
enabled  to  go  at  large  on  every  topic  for  the  public  ear. 
But  a  fair  examination  of  facts  will  satisfy  the  court  that 
there  is  no  foundation  in  law,  nor  justice,  nor  even  in 
policy  for  this  motion. 

Before  I  examine  the  merits  of  this  motion,  I  can  not 
forbear  to  express  my  surprise,  that  it  should  be  made 
by  the  counsel  for  the  prisoner.  It  is  called  a  contempt 
of  the  court.  In  what  manner  can  any  of  the  acts 
charged,  be  tortured  into  a  contempt  of  the  court.  Is 
this  motion  made  by  order  of  the  court  itself?  The  court 
would  never  have  thought  of  it.  Is  it  made  by  the  Uni- 
ted States,  or  their  officers?  No.  Nor  is  it  made  by  a 
party  injured.  Burr  can  not  justly  say  that  he  was  in- 
jured by  bringing  a  witness  to  this  place,  who  was  one  of 
his  own  associates,  and  who  quitted  his  wife,  children, 
home,  and  business,  to  join  him. 

What  then  can  be  their  motive  in  makinsr  this  motion 


MOTION    FOR     AN    ATTACHMENT.       339 

The  solution  is  obvious.  It  is  not  with  a  view  to  clear 
away  obstructions  of  justice  ;  but  to  make  an  impression 
on  the  public  mind,  that  General  Wilkinson,  whose  evi- 
dence is  important,  was  guilty  of  violence  and  injustice. 
The  motion  itself  is  a  contempt  of  the  court,  by  obstruct- 
ing public  justice. 

Chief  Justice. — Mr.  Hay,  the  court  will  hear  any  mo- 
tion which  you  may  have  to  make,  or  which  any  other 
gentleman  may  wish  to  make. 

Mr.  Hay. — I  cheerfully  withdraw  the  remark,  and  to 
save  time,  I  will  discuss  this  motion  first.  I  will  state  as 
briefly  as  I  can,  the  evidence  of  the  only  witness  intro- 
duced in  support  of  this  motion  to  attach  General  Wil- 
kinson, James  Knox. 

He  says  that  General  Wilkinson  sent  for  him,  con- 
versed with  him  about  Burr,  and  his  plans,  as  he  wished 
him  to  be  a  witness  at  the  expected  trial.  Knox  com- 
plained to  him  of  the  want  of  money  to  carry  him  home. 
General  Wilkinson  offered  him  money.  He  knew,  that 
if  Knox  was  summoned  as  a  witness  on  the  part  of  the 
United  States,  he  would  be  entitled  to  money  for  his  at- 
tendance. It  is  only  a  conjecture  of  Knox,  that  General 
Wilkinson's  motive  for  offering  him  money  was  to  in- 
duce him  to  be  a  witness.  I  think  this  conjecture  in- 
finitely more  probable  :  that,  knowing  his  evidence  to  be 
material,  and  that  he  would  be  entitled  to  his  expenses 
for  his  attendance,  which  might  be  prevented  by  his  want 
of  money,  Wilkinson  thought  he  might,  very  properly 
and  innocently,  obviate  that  difficulty  by  advancing 
money  from  the  treasury  of  the  United  States,  to  the 
amount  that  he  would  probably  be  entitled  to.  Knox 
said,  that  he  was  afterwards  arrested,  and  carried  as  he 
understood,  before  Judge  Hall;  committed  to  prison, 
and  carried  on  board  the  schooner  Revenge,  by  what  he 
conceived  to  be  military  authority ;  that  he  answered 
some  questions,  which,  according  to  his  own  statement, 
were  artfully  put ;  but  that  he  declined  going  through  his 
evidence  before  General  Wilkinson  :  notwithstanding,  he 
is  declared,  in  presence  of  this  man,  to  be  a  military  des- 
pot, keeping  the  whole  western  world  in  awe  and  terror. 
The  witness  himself  expressly  declares,  that  Wilkinson 
never  used  threats  nor  promises  to  him  ;  and  yet  gentlemen 


340  TRIAL  OF  AARON  B  URR. 

have  frequently  misstated  the  notes,  taken  by  General 
Wilkinson,  to  be  an  affidavit  extorted  from  him.  Now, 
sir,  admit  foi  a  moment,  that  this  man  was  brought  here 
under  a  mistake  of  the  law;  admit  more  than  he  states, 
that  he  was  brought  by  military  authority,  and  the  orders 
of  General  Wilkinson,  and  forcibly  brought  into  this 
court.  Suppose  merely,  that  the  general  thought,  that 
as  the  military  commander  he  had  a  right  to  bring  reluc- 
tant witnesses  to  this  country;  and  had  brought  Knox  to 
this  court,  because  he  knew  him  to  be  a  material  wit- 
ness. I  ask  the  court,  whether  this  evidence,  on  princi- 
ples of  common  sense,  could  justify  the  motion  now  be- 
fore the  court?  This  would  bean  illegal  act,  and  for 
which  Knox  might  recover  damages  ;  but  certainly  it 
could  not  be  called  a  contempt  of  the  court,  without  a 
perversion  of  terms,  and  confusion  of  ideas.  It  would 
promote,  rather  than  obstruct,  justice.  There  is  one  spe- 
cies of  treatment  which  might  be  offered  to  a  witness, 
that  might  be  called  such  a  contempt.  Suppose  a  wit- 
ness were  coming  to  this  capital  with  a  subpoena  in 
his  pocket,  which  had  been  served  on  him  to  attend 
and  give  testimony  in  this  cause,  and  he  were  forcibly 
prevented  from  coming  to  court,  that  would  be  a  con- 
tempt of  the  court.  In  that  case,  the  streams  of  justice 
would  be  interrupted,  and  the  court  ought  to  punish  the 
party  guilty  of  such  unjustifiable  conduct ;  and  if  the 
court  would  punish  an  offender  for  stopping  a  witness 
from  coming  to  court,  it  would  not  act  absurdly,  blow  hot 
and  cold  at  the  same  time  ;  and  punish  a  person  for  bring- 
ing a  man  to  court  to  tell  all  he  knew  in  this  cause.  If 
to  prevent  a  witness  from  attending  the  court,  be  a  viola- 
tion of  private  right,  and  a  contempt  of  the  court,  for 
which  the  offender  ought  to  be  punished,  on  principles 
of  common  sense,  an  act  diametrically  opposite,  can  not 
be  the  same  offense.  Admitting  the  conception  of  the 
.vitness  to  be  correct,  that  he  was  brought  hither  by  mil- 
itary authority  proceeding  from  General  Wilkinson,  this 
is,  .conclusive  to  show,  that  it  is  not  a  contempt  of  the 
court.  Therefore,  according  to  the  testimony  of  the  only 
witness  brought  forward  in  support  of  this  motion,  and 
allowing  it  the  utmost  latitude  of  construction,  General 
Wilkinson  is  not  guilt)'  of  a  contempt  of  the  court,  for 


MOTION    FOR    AN    ATTACHMENT.       341 

which  he  ought  to  be  att'ached,  or  for  which  even  a  rule 
to  show  cause  against  it,  should  be  granted. 

But,  sir,  what  is  the  real  history  of  the  conduct  of 
General  Wilkinson  ?  Why,  sir,  the  mountain  of  which 
gentlemen  have  talked  so  much  dwindles  to  a  mouse  ; 
nay,  more,  it  disappears ;  not  even  a  shadow  is  left  behind. 
The  cause  about  which  so  much  has  been  said,  and  by 
means  of  which  so  much  obloquy  has  been  attempted  to 
be  thrown  on  General  Wilkinson,  is  this  :  Mr.  Gaines  was 
requested,  by  the  attorney-general  of  the  United  States, 
to  serve  subpoenas  on  such  witnesses  as  should  be  indi- 
cated to  him.  General  Wilkinson  has  the  honor  and 
glory  of  being  the  man,  by  whom  a  dreadful  explosion 
was  prevented.  He  knew  facts  and  the  particular  state 
of  things  better  than  any  other  man.  The  subpoenas 
were,  therefore,  very  properly  transmitted  to  him,  to  be 
filled  up  with  the  names  of  the  witnesses.  Mr.  Gaines 
did  serve  the  subpoena  on  Knox,  who  said  he  was  unwill- 
ing to  attend;  and  he  served  it  on  him,  because  he  was 
previously  pointed  put  to  him  by  General  Wilkinson,  to 
whom  Knox  had  made  some  disclosure.  Though  he  had 
not  made  a  full  disclosure,  yet  he  had  told  enough  to 
show  that  he  was  a  material  witness.  I  have  in  my  pos- 
session the  notes  of  his  evidence,  taken  by  General 
Wilkinson,  which,  though  neither  sworn  to  nor  signed, 
would  have  been  sufficient  to  show  his  materiality;  as  he 
had  come  down  the  river  with  the  party,  and  had  some 
opportunity  of  knowing  their  views  and  objects.  With 
a  knowledge  of  this  man's  materiality,  General  Wilkinson 
made  an  affidavit  that  he  was  a  material  witness  for  the 
United  States,  and  it  was  sent,  we  do  not  know  by  whom 
(perhaps  by  a  servant)  ;  it  is  certain  he  did  not  carry  it 
himself.  I  will  make  a  single  reflection  in  this  place. 
If  General  Wilkinson  had  been  under  the  influence  of 
those  diabolical  designs  which  are  ascribed  to  him,  how 
came  it  to  pass  that  he  intrusted  this  business  to  a  man 
with  whom  he  was  at  variance?  This  evinces  a  great 
deal  of  fairness  and  candor  on  his  part.  The  judge  issues 
his  precept  to  take  this  man  up,  requires  a  recognizance 
of  him  ;  he  gives  no  security  ;  the  judge  deliberates  on 
the  subject;  examines  the  laws  of  his  country  (with  the 
lamination  of  which  he  was  intrusted) ;  gives  his  opin- 


342  TRIAL  OF  AARON  B  URR. 

ion,  and  expresses  his  extreme  reluctance  to  act  against 
him.  He  refers  to  the  clause  of  the  act  of  congress  in 
question  ;  to  the  counsel  who  was  present;  and  after  all, 
he  said,  that  he  thought  it  his  duty  to  secure  the  atten- 
dance of  this  man  as  a  witness.  He  committed  him,  not 
to  military  authority,  but  to  the  marshal.  He  issued  his 
warrant  to  the  marshal  of  that  district,  and  the  marshal 
authorized  Mr.  Gaines  to  act  as  his  deputy;  and  here  is 
the  warrant  (showing  it)  which  authorized  Mr.  Gaines 
to  act  as  deputy  marshal. 

Mr.  Botts  denied  that  there  was  any  order  conferring 
such  an  authority.  [Mr.  Gaines  was  then  sent  for.] 

Mr.  Mac  Rae  offered  to  prove  the  respectability  of 
Judge  Hall,  as  he  had  been  attacked  ;  and  said  he  could 
amply  establish  that  he  was  a  man  of  character  and  tal- 
ents, and  incapable  of  being  used  as  a  tool. 

The  Chief  Justice  said  that  nothing  would  be  more 
improper  than  to  go  into  such  proof;  that  his  character 
was  not  arraigned  ;  and  that,  therefore,  a  vindication  of 
it  was  unnecessary. 

After  a  few  desultory  remarks,  Mr.  Botts  said  that  he 
had  not  attacked  him  except  as  to  this  business  ;  but  his 
opinion  was  that  if  a  lawyer  in  Virginia  had  given  such 
an  opinion,  and  acted  as  Judge  Hall  did  in  this  trans- 
action, his  license  ought  to  be  revoked,  but  that  he  had 
understood  from  the  best  authority,  that  he  was  a  man 
of  unimpeachable  character. 

Mr.  Hay. — Gentlemen  may  do  as  they  please  with 
Judge  Hall.  It  is  not  my  business  to  vindicate  him  ; 
they  may  lay  him  down  in  dust  and  ashes.  It  can  not 
affect  General  Wilkinson,  nor  the  question  before  the 
court,  unless  they  prove  a  connection  between  them.  I 
said  that  the  judge  had  committed  Knoxto  the  custody 
of  the  deputy  marshal ;  then  he  directed  the  warrant 
to  the  marshal  requiring  him  to  bring  him  to  this  place. 
The  marshal  executes  a  deputation  to  Gaines,  who  arrests 
him,  puts  him  in  custody,  then  puts  him  on  board  the 
vessel,  and  brings  him  as  a  witness  to  Richmond. 
General  Wilkinson,  so  far  from  manifesting  contempt  of 
the  civil  authority,  was  fearful  that  Gaines  might  do 
wrong,  and  recommended  to  him  to  apply  to  the  attor- 
ney of  the  United  States,  and  to  other  counsel  to  know 


MOTION    FOR    AN    ATTACHMENT.        343 

how  to  proceed.  I  deem  this  a  very  important  point, 
because  General  Wilkinson  had  not  the  slightest  expec- 
tation, that  he  would  be  the  subject  of  public  animadver- 
sion, or  that  Burr  would  be  the  public  accuser  for  what  he 
was  then  doing.  Therefore,  his  recommendation  to 
Gaines  to  apply  to  counsel,  demonstrates  the  habitual 
reverence  of  his  mind  for  the  constituted  authorities  of 
his  country.  It  is  impossible  that  he  could  have  done 
so  for  the  purpose  of  shielding  himself  from  this  attach- 
ment ;  for  without  inspiration  from  above,  he  never 
could  have  guessed  that  such  a  motion  as  this  would  be 
made.  This  conduct,  in  my  mind,  demonstrates,  in  the 
clearest  manner,  that  those  imputations,  that  he  is  a 
military,  lordly,  despotic  character,  and  holds  in  con- 
tempt the  civil  authority,  are  absolutely  groundless. 
How  far  General  Wilkinson  was  justifiable  in  time  of  great 
danger,  when  he  was  threatened  by  traitors  without  and 
within,  in  acting  as  he  did  at  New  Orleans,  or  what  he  ought 
to  have  done  on  that  trying  occasion,  is  a  question  not  now 
to  be  determined.  I  am  inclined  to  believe  (though  I  do 
not  certainly  know)  that  the  decision  will  not  only  be 
favorable  to  him,  but  that  ultimately  the  part  he  took 
will  be  honorable  in  the  highest  degree  to  his  character. 

The  declaration  made  by  General  Wilkinson  to  Knox, 
who  was  complaining  to  him  of  the  want  of  money,  that 
he  might  have  so  much,  if  duly  considered,  was  proper 
and  correct. — Now,  sir,  take  up  the  subject  as  it  really 
appears ;  even  on  the  witness's  own  statement,  it  ap- 
pears to  be  almost  nothing.  His  ordering  the  military 
agent  to  pay  money  to  the  witnesses,  shows  his  reason 
for  offering  money  to  Knox.  When,  therefore,  we  con- 
sider the  case  as  fully  stated  by  Gaines,  it  appears  to  be 
less  than  nothing  ;  because  General  Wilkinson  did  what 
was  perfectly  consistent  with  law,  and  dictated  by  every 
principle  that  ought  to  influence  a  man  of  integrity  and 
patriotism. 

Gentlemen  say,  that  it  was  his  interest  and  his  object, 
in  all  his  plans,  to  destroy  Mr.  Burr  for  his  own  sal- 
vation. If  this  were  true,  would  he  not  have  used  the 
most  decisive  means  to  force  the  witnesses  hither?  What 
did  he  do  in  this  critical  situation?  He  receives  subpoe- 
nas from  the  attorney-general,  and  tells  the  agent  of  the 


344  TRIAL  OF  AARON  BURR. 

government,  that  he  must  apply  to  counsel,  and  act  in  • 
the  business  according  to  law.  I  ask,  whether  General 
Wilkinson  has  done  anything  for  which  he  or  his  friends 
ought  to  blush,  or  the  accused  to  complain  ?  All  he  did 
was  to  make  an  affidavit,  that  the  witness  was  material ; 
and  everything  which  he  did,  stopped  there.  After  the 
affidavit,  everything  which  was  done  was  the  act  of  the 
judge  and  of  Mr.  Gaines.  Will  gentlemen  contend,  that, 
if  my  representation  be  correct,  Wilkinson  is  to  be  blamed 
for  these  acts?  I  know  they  have  too  much  respect  for  the 
court  and  for  themselves  to  say  so  :  but  they  will  say, 
that  the  military  and  civil  authority  were  united  for  this 
purpose.  I  ask,  where  is  the  evidence  of  a  combination 
between  General  Wilkinson  and  the  judge?  What  temp- 
tation was  there  to.  induce  the  judge  to  violate  his  oath, 
and  prostrate  his  judicial  character?  Was  it  only  for  the 
purpose  of  gratifying  General  Wilkinson,  with  whom  he 
had  no  intercourse,  and  with  whom  he  was  at  variance? 
It  is  incumbent  on  them  to  prove  a  previous  connection' 
between  them  before  they  can  affect  General  Wilkinson. 
They  have  not  deigned  to  do  this.  But  we  have  a  wit- 
ness on  our  part,  whose  testimony  proves,  that  such  a 
connection  was  highly  improbable.  I  wish  Mr.  Randolph 
had  pointed  out  the  grounds  on  which  he  so  boldly  de- 
nounced General  Wilkinson  for  the  acts  of  the  judge. 
Knox,  who  made  a  voluntary  representation  to  Burr,  has 
no  right  to  complain.  He  could  maintain  no  action 
against  General  Wilkinson.  Suppose  he  were  to  sue  him 
for  false  imprisonment.  Could  he  recover  damages 
against  him  for  making  the  affidavit,  that  he  was  a  mate- 
rial witness  ?  No,  sir.  The  connection  between  him  and 
the  judge,  and  an  improper  and  corrupt  decision  by  the 
judge,  must  be  proved.  The  witness  could  have  no  ac- 
tion against  General  Wilkinson,  admitting  the  conduct 

o  o 

of  Judge  Hall  to  be  illegal  and  oppressive.  I  think  this 
ought  to  be  conclusive.  If  there  can  be  no  right  of  ac- 
tion, there  can  be  no  contempt.  But  how  strange  does 
this  proposition  appear  before  the  court  ?  Knox  was 
summoned  to  attend  here  as  a  witness.  Suppose  he  had 
not  attended,  he  would  have  been  liable  to  an  attach- 
iru  nt  for  not  coming;  because  the  process  of  this  court 
(in  the  name  of  the  president  of  the  United  States)  had 


MOTION    FOR     AN    ATTACHMENT.      345 

been  served  on  him,  and  it  was  his  duty  to  obey  it. 
He  would,  therefore,  have  been  liable  to  be  attached  for 
not  coming,  and  yat  General  Wilkinson  is  to  be  liable 
to  an  attachment  for  making  him  come!  Is  not  this  to 
blow  hot  and  cold  at  the  same  time  ?  This  may  be  law  ; 
but  no  man  in  the  world  would  say,  that  it  bears  the 
least  resemblance  to  common  sense. 

The  gentlemen  have  never  defined  a  contempt  of  the 
court.  It  is  stated  in  5th  Viner,  442. 

The  very  definition  of  the  offense  excludes  the  possi- 
bility of  its  application  to  the  act  now  complained  of. 

How,  then,  can  there  be  anything  by  way  of  contempt, 
unless  gentlemen  will  seriously  say,  that  General  Wilkin- 
son himself  has  brought  the  witness  hither,  and  that 
bringing  a  witness  to  the  court  is  a  contempt  of  it. 

The  case  in  2  Viner,  234,  pi.  56,  referred  to  by  Mr.  Mar- 
tin, has  no  application  to  this  case  :  it  is  not  like  it.  The 
contempt  there  consisted  in  keeping  a  juryman  from  at- 
tending the  court.  I  v/ill  trouble  the  court  by  referring 
to  4th  Blackstone's  Commentaries,  p.  283.  He  states 
that  the  contempts  punishable  by  attachment  are  "either 
direct,  which  openly  insult  or  resist  the  powers  of  the 
court,  or  the  persons  of  the  judges  who  preside  there:  or 
else  are  consequential,  which  (without  such  gross  inso- 
lence or  direct  opposition)  plainly  tend  to  create  a  uni- 
versal disregard  of  their  authority."  He  further  enumer- 
ates in  the  two  next  pages,  the  instances  of  the  different 
kinds  of  contempts  by  officers,  witnesses  and  parties,  and 
other  persons  ;  all  of  which  come  within  the  same  defini- 
tion, of  disregarding  the  authority  of,  or  disobeying, 
treating  with  disrespect,  or  abusing,  the  process  of  the 
court.  I  believe  it  has  been  observed,  that  there  never 
was  an  author  of  any  subject,  either  law  or  any  other 
science,  more  distinguished  for  precision  than  Black- 
stone.  This  is  a  character  which  he  so  well  deserves,  that 
I  believe  that  an  act  that  does  not  come  within  the  scope 
of  his  definition,  is  not  a  contempt,  and  ought  not  to  be  so 
construted.  Motions  for  contempts  are  questions  be- 
tween the  court  and  individuals.  In  ninety-nine  cases  out 
of  a  hundred,  they  have  no  influence  on  the  private  rights 
of  individuals.  Yet  the  judges  are  but  men,  and  they  may 
sometimes  think  there  was  a  contempt,  when  none  was  in- 


346  TRIAL  OF  AARON  B  URR. 

tended:  and,  under  the  influence  of  feelings,  of  which 
they  are  not  themselves  conscious,  may  decide  accord- 
ingly, and  punish  a  party  for  an  offeyse  never  intended, 
and  of  course  not  committed.  This  is  an  observation 
for  which  I  am  indebted  to  one  of  the  ablest  judges  un- 
der the  government  of  Virginia.  Its  propriety  struck 
me  with  great  force.  Notwithstanding  I  .presume  that 
this  is  a  fact,  under  such  a  high-toned  government  as 
that  of  England,  the  counsel  who  opened  the  motion 
acknowledged,  that  a  case  in  point  could  not  be  found. 
Contempts  in  Great  Britain  have  been  frequent,  and 
they  have  been  uniformly  punished  ;  but  in  this  country 
very  few  instances  have  occurred,  and  these  were  mostly 
by  drunken  men.  I  ask,  then,  whether  it  be  not  wonder- 
ful, if  their  motion  be  regular,  that  in  all  the  volumes  in 
the  English  laws,  which  treat  on  the  subject  of  con- 
tempts, not  a  single  instance  can  be  adduced,  by  the  in- 
dustry of  all  the  counsel  on  the  other  side,  of  an  attach- 
ment for  such  conduct  as  is  now  complained  of  ?  But 
it  can  be  readily  accounted  for:  it  is  because  no  such 
motion  as  this  has  ever  been  known  in  Great  Britain. 
Though  the  doctrine  of  contempts  have  been  too  much 
extended  in  that  country,  yet  no  motion  was  ever  at- 
tempted to  punish  a  man  for  promoting  justice  by 
bringing  forward  a  witness  to  give  evidence  in  a  court  of 
justice.  But  I  deny  that  this  has  been  done  by  the 
party  now  accused.  Is  there  a  single  circumstance  in 
the  conduct  of  General  Wilkinson,  showing  a  disregard 
for  the  authority  of  this  court?  An  attachment  is  a 
summary  proceeding  by  which  a  man  is  taken  up  in- 
stantaneously, brought  before  the  court,  and  unless,  as 
in  the  present  case,  long  speeches  happen  to  intervene, 
he  is  immediately  punished  or  discharged;  and  the  case 
is  determined  with  as  much  rapidity,  as  the  fate  of  those 
suspected  persons,  who  were  formerly  sent  to  the  revo- 
lutionary tribunal  in  France.  Need  I  say  to  you,  that 
however  justified  on  the  score  of  necessity,  this  mode  of 
preceeding  is  not  perfectly  congenial  with  the  spirit  and 
principles  of  our  constitution  and  laws.  I  do  not  mean 
to  say,  that  this  power  is  improper,  and  ought  to  be  cut 
up  by  the  roots  by  the  legislature ;  but  that  it  ought  to 
be  exercised  with  caution,  and  in  cases  of  real  necessity, 


MOTION  FOR  AN  ATTACHMENT.  347 

1st  Bacon,  181,  and  4  Blackstone's  Commentaries,  286, 
show,  that  attachments  are  issued  on  the  ground  of 
necessity.  If  it  be  a  doubtful  case,  since  he  is  not  tried 
in  the  usual  manner,  but  interrogated  to  give  evidence 
against  himself,  the  court  ought  not  to  stretch  the  doc- 
trine, but  confine  it  within  those  limits  which  sound  dis- 
cretion requires.  Even  if  an  officer  of  the  court  acted 
improperly,  yet  Bacon  has  laid  it  down  as  the  law,  that 
an  attachment  ought  not  to  be  issued  against  him,  if 
there  were  no  palpable  corruption  in  his  conduct.  If 
this  be  the  law,  is  it  not  irresistible  and  conclusive  to  show 
that,  admitting  that  General  Wilkinson  did  bring  Knox 
to  this  place,  yet  if  he  were  not  actuated  by  palpable 
corruption,  and  if  no  extraordinary  circumstance  of  mis- 
conduct appeared  on  his  part,  the  court  will  not  proceed 
against  him  in  that  way.  If  this  caution  be  used  in  ex- 
ercising this  extraordinary  power  in  Great  Britain,  is  not 
this  caution  ten  times  more  .applicable  to,  and  more  de- 
sirable in,  a  government  like  ours?  I  will  mention  a 
case  which  occurred  in  Fredericksburg,  which  has  been 
communicated  to  me  by  Judge  Roane.  Some  men  were 
charged  in  that  district  court  with  murder;  the  grand 
jury  found  a  true  bill  against  them.  The  court  told  the 
jailer  to  look  to  them  ;  accordingly  the  man  took  them 
out  of  court;  but  it  was  understood  next  day,  that  he 
had  permitted  them  to  escape.  The  court  thought  it  a 
contempt  of  the  express  order  of  the  court,  and  the 
question  was,  in  what  manner  a  jailer  should  be  punished 
for  suffering  men  indicted  for  murder  to  go  at  large. 
The  jailer  was  willing  to  encounter  the  punishment  of 
the  law,  and  the  men  came  back.  Judge  Tucker  thought 
it  certainly  a  contempt  of  the  court ;  but  did  not  sit  to 
give  a  judicial  opinion.  Judge  Roane,  recollecting  the 
general  power  of  courts,  and  the  practice  in  such  cases, 
and  that  he  was  himself  a  party  in  the  cause,  was  un- 
willing to  use  the  power  which  this  law  of  England  con- 
ferred, and  ordered  a  jury  to  be  impaneled,  to  determine 
whether  a  contempt  were  intended  ?  The  point  was 
tried,  and  the  jailer  was  found  not  guilty.  I  do  not 
mention  this  as  authority  ;  but  to  show  with  how  much 
caution  this  summary  mode  of  proceeding  is  used  in 
this  country.  In  Great  Britain  they  have  no  fixed  con- 


348  TRIAL  OF  AARON  BURR. 

stitution,  containing  fixed  principles,  by  which  their  par- 
liament is  to  be  regulated.  But  in  this  country  we  have 
a  constitution  which  regulates  the  duties  of  the  different 
departments  of  government,  and  defines  the  rights  of 
the  people.  The  seventh  article  of  the  amendments, 
adopted  as  parts  of  the  constitution  of  the  United 
States,  provides,  among  other  things,  that  "  no  person 
shall  be  subject  for  the  same  offense,  to  be  twice  put  in 
jeopardy  of  life,  or  limb,  nor  shall  be  compelled  in  any 
criminal  case,  .to  be  witness  against  himself."  This 
amendment  is  not  directly  applicable  to  this  subject, 
but  it  shows  its  regard  for  the  great  and  important  rights 
of  the  people,  and  that  they  are  not  to  be  interfered 
with,  but  with  the  utmost  respect  and  caution.  What 
can  not  be  done  directly  in  a  criminal  prosecution, 
ought  not  be  attempted  indirectly  by  an  attachment. 
I  shall  add,  on  this  point,  one  more  observation. 
General  Wilkinson  is  attending  this  important  prose- 
cution, under  the  authority  of  this  court,  A  sub- 
poena, obliging  him  to  attend  here,  has  been  served 
upon  him.  I  do  not  say,  that  there  is  a  provision 
in  the  constitution  and  laws  of  the  United  States,  by 
which  witnesses  attending  their  courts,  are  put  on  the 
same  footing  as  witnesses  attending  courts  under  the 
state  authority ;  but  I  have  understood  that  the  practice 
in  the  federal  courts  is  precisely  the  same.  It  is,  perhaps, 
grounded  .on  that  clause  of  the  judicial  act,  which  makes 
the  laws  of  the  several  states  the  rule  of  decision  in  the 
courts  of  the  United  States,  in  trials  at  common  law, 
in  cases  where  they  apply.  In  pages  122  and  278  of  the 
Revised  Code  of  Virginia,  the  privileges  of  witnesses 
are  stated.  In  the  former  page  they  are  exempted  from 
ordinary  process.  In  the  latter,  they  are  privileged 
from  all  arrests,  except  for  treason,  felony,  or  breaches 
of  the  peace. 

I  did  not  suppose,  when  I  saw  the  extreme  solicitude 
of  gentlemen  to  bring  forward  this  motion,  their  chagrin 
at   delay,  and  their  eagerness  to  rush   into  the  combat, 
that  they  would  have  come  forward  on  such  feeble,  trem 
blirig  ground,  as  they  have  done. 

Mr.    Randolph    said    that    suspicion    was  a    sufficient 
ground  for  their  motion.     This  is  a  plain  admission,  that 


MOTION    FOR    AN    ATTACHMENT.       349 

he  had  no  facts  to  support  it ;  for  if  he  had  evidence,  he 
would  have  relied  on  the  facts  he  could  prove,  and  never 
have  called  the  attention  of  the  court  to  suspicion.  It  is 
one  of  the  last  cases  in  which  suspicion  ought  to  be  in- 
dulged. This  is  not  a  rule  to  show  cause,  but  a  motion 
for  an  attachment.  Probable  ground  might  be  sufficient 
to  induce  the  court  to  grant  a  rule  to  show  cause  ;  but 
not  to  grant  an  attachment.  To  grant  an  attachment 
against  a  man,  to  have  him  taken  up,  brought  before 
the  court,  and  compelled  to  give  evidence  against  him- 
self, not  on  evidence,  but  on  merely  probable  ground,  or 
what  is  the  same  thing,  suspicion,  is  incompatible  with 
every  principle  of  law  and  of  human  rights.  The  evi- 
dence which  it  is  incumbent  on  them  to  produce  in  sup- 
port of  their  motion,  ought  to  produce  not  suspicion, 
but  conviction.  When  Mr.  Randolph  says  that  suspi- 
cion may  be  the  ground  for  an  attachment,  he  goes  on 
a  slender  basis,  which  is  occupied  by  the  previous  rule 
to  show  cause.  This  rule  is  always  granted  on  showing 
probable  cause.  If  an  attachment  were  grantable  on 
mere  suspicion,  what  could  support  a  rule  to  show  cause? 
It  must  be  less  than  suspicion  ! 

But  I  am  wrong  to  blame  Mr.  Randolph,  because  it  is 
the  best  and  strongest  ground  he  could  take  ;  for,  with 
respect  to  the  fact  which  he  ought  to  prove  at  this  stage 
of  the  business,  it  is  so  far  from  being  established,  that  it 
is  clearly  disproved.  I  know,  sir,  why  the  motion  was 
made.  If  I  may  use  another  very  homely  expression, 
he  "  let  the  cat  out  of  the  bag."  He  became  more  ani- 
mated, his  voice  more  loud,  and  his  arms  more  extended, 
and  then  he  told  us  of  the  dreadful  union  between  the 
civil  and  military  authority.  This  is  bad  enough.  It  is 
terrible  enough  to  make  strangers  to  our  institutions 
think  it  an  extraordinary  mixture  of  powers.  When  we 
hear  of  this  union  of  the  civil  and  military  authority, 
and  the  complaint  comes  from  Mr.  Randolph,  it  must 
excite  surprise.  Those  who  never  heard  of  it  before,  as 
foreigners,  must  think  that  this  business  is  strangly  man- 
aged in  this  country.  I  am  surprised  to  hear  Mr.  Ran- 
dolph speak  in  such  a  manner.  Why,  sir,  he  knows  that 
this  identical  union  of  the  civil  and  military  authority 
exists  in  our  own  government.  The  civil  and  military 


350  TRIAL   OF  AARON  BURR. 

authority  are  joined  by  the  constitution  of  the  United 
States.  The  president  is  commander-in-chief  of  the 
army  and  navy  of  the  United  States  ;  yet  this  constitu- 
tion, which  we  all  revere,  and  which  we  have  all  sworn 
to  support,  contains  the  very  doctrine  which  Mr.  Ran- 
dolph so  eloquently  denounced.  Even  in  this  humble 
government  of  Virginia,  where  liberty  is  secure,  and 
where  no  man  apprehends  oppression  from  the  govern- 
ment, the  head  of  the  executive  is  the  head  of  the  mili- 
tary. The  governor  is  the  commander-in-chief  of  the 
militia  when  brought  into  service ;  yet  Mr.  Randolph 
puts  on  his  best  countenance,  voice,  and  gesture  to  warn 
the  people  of  this  country  of  a  dreadful  attack  on  their 
liberties,  by  giving  this  commission  to  a  lieutenant  to 
serve  a  subpoena ! 

He  ought  to  have  recollected  another  thing.  He  is 
not  only  a  lawyer,  but  a  politician.  He  knows  that  it  is 
to  this  very  identical  union  of  the  civil  and  military  au- 
thority, that  we  are  indebted  for  our  liberties  in  their 
origin,  and  since  in  their  preservation.  If  they  were 
distinct,  and  exercised  by  different  hands,  we  should  soon 
see  the  military  have  the  ascendancy. 

But  suppose  that  Lieutenant  Gaines's  undertaking  to 
serve  the  subpoena  was  wrong,  is  it  a  matter  of  conse- 
quence to  General  Wilkinson,  who  did  not  know  that 
Gaines  had  put  off  his  military  dress,  and  assumed  in- 
stead of  it,  that  of  a  civil  officer  ?  Gaines  swears  that 
he  never  had  any  previous  communication  with  General 
Wilkinson  on  the  subject ;  and  never  knew  anything  of 
it  till  the  deputation  was  offered  to  him.  General  Wil- 
kinson never  advised  it ;  but  if  he  had  advised  him  to 
accept  it,  it  can  not  be  charged  as  a  crime  to  General 
Wilkinson.  He  is  able  and  willing  to  bear  the  imputation 
without  shrinking.  There  could  be  no  impropriety  in  ad- 
vising him  to-do  what  was  perfectly  consistent  with  the  law. 

But  Gaines  did  not  give  bond  for  the  performance 
of  the  duties  of  his  office.  What  is  the  result  ?  That 
the  marshal  was  authorized  to  take  assistance,  and  Gaines 
might  innocently  have  assisted  him  ;  and  this  was  all  done 
not  under  the  military,  but  under  the  civil  authority. 

[Mr.  Hay  then  referred  the  court  to  Graydon's  Di- 
gest of  the  Laws,  p.  264,  to  show  that  his  observations  on 


MOTION    FOR     AN    ATTACHMENT.       351 

this  part  of  the  subject  were  correct.]  But,  sir,  the  word 
"  military,"  is  formidable  in  the  ears  of  those  who  attend 
courts  of  justice.  It  is  therefore  used.  It  is  true,  that  he  act- 
ed in  taking  and  keeping  Knox,  till  he  secured  his  attend- 
ance here.  But  had  gentlemen  attended  to  the  evi- 
dence they  would  have  seen  that  this  was  done  un- 
der the  authority  of  the  judge.  But  we  hear  dis- 
tinctly those  parts  of  the  evidence  which  favor  our 
own  side  of  a  cause,  and  turn  a  deaf  ear  to  those  parts 
which  are  against  us.  It  is  only  on  this  principle,  that  I 
can  account  for  Mr.  Randolph's  preference  in  asserting 
that  Gaines  acted  as  a  military  character  ;  whereas  it  is 
evident  that  he  acted  in  his  civil  capacity,  in  pursuance 
of  his  commission  from  the  marshal,  and  in  obedience  to 
the  order  of  the  judge.  In  this  statement  he  is  corrobor- 
ated by  Graham,  and  not  contradicted  by  any  one.  He 
not  only  says  so,  but  he  produces  the  deputation  from 
the  marshal,  and  the  warrant  of  the  judge,  for  the  re- 
moval. Buc  if  Gaines  did  act  as  a  military  man, 
General  Wilkinson  is  not  responsible  for  it,  any  more 
than  the  major  or  colonel,  who  were  also  his  military  su- 
periors ;  and  if  he  were  liable  to  the  party  in  a  civil  action, 
yet  not  for  a  contempt  of  the  court.  "Yet,"  says  Mr. 
Randolph,  "  he  is  incorporated  with  Judge  Hall,  in  all 
his  acts  ;"  and  one  fact  is  particularly  insisted  on  as  in- 
corporating them,  that  of  his  making  the  affidavit,  that 
Knox  was  a  material  witness;  and  the  result -is,  that  it 
Judge  Hall  put  a  wrong  construction  on  the  law, 
General  Wilkinson  is  responsible  for  it.  Suppose 
Wilkinson  had  gone  before  Hall,  and  made  an  affi- 
davit tovthe  materiality  of  the  witness,  could  Wilkin- 
son be  considered  as  responsible  for  any  illegal  conduct 
of  the  j  udge,  after  the  affidavit  was  made  ?  Making  such 
an  affidavit  is  a  lawful  act.  On  what  principal  can  a  man 
who  does  a  lawful  act  be  amenable  for  the  subsequent 
unlawful  acts  of  another?  Will  they  contend  for  so 
monstrous  a  proposition?  Suppose  an  individual  goes 
before  a  magistrate  and  makes  an  affidavit  that  he  has 
lost  something,  which  he  believes  to  be  in  the  possession 
of  another;  and  the  magistrate,  not  knowing  his  duty, 
issues  his  warrant  for  the  purpose  of  taking  up  the  per- 
son suspected,  to  hang  him  ;  would  the  individual,  ihus 


352  TRIAL  OF  AARON  BURR. 

submitting  his  case  to  the  magistrate,  be  responsible  tot 
the  conduct  of  the  magistrate?  What  does  he  do? 
He  goes  to  the  magistrate  and  asks  for  the  interpo- 
sition of  the  law,  according  to  the  law.  Is  the  ap- 
plying, but  innocent,  individual  to  be  accountable  for 
the  mistakes  and  errors  of  the  magistrate  ?  The  position 
can  not  be  maintained.  It  was  not  advanced  in  so  many 
terms,  but  it  was  strongly  insinuated  in  their  arguments, 
or  plainly  to  be  inferred  from  them. 

But  another  circumstance  is  relied  on.  Wilkinson  was 
the  commander  of  the  vessel.  This  is  disproved.  For 
it  is  clearly  proved,  that  Franklin  Read  was  the  com- 
mander, who  had  a  commission  to  that  effect.  Though 
the  naval  forces  were  for  a  time  put  under  the  command 
of  General  Wilkinson  at  New  Orleans,  he  had  no  con-v 
trol  over  this  vessel  at  this  time.  It  was  natural  that 
General  Wilkinson  should  have  offered  a  passage  to  the 
witnesses,  if  they  chose  to  come  in  the  same  vessel  that 
he  came  in  himself.  He  manifested  the  same  disposition 
when  he  came  to  Hampton.  He  got  a  vessel  for  their 
accommodation  and  its  cheapness.  It  only  proves  his 
humanity  and  his  disposition  to  oblige  them,  and  make 
their  passage  as  comfortable  as  possible. 

Yet,  said  Mr.  Randolph,  with  an  increased  emotion 
and  elevation  of  voice,  that  would  have  surprised  me  if 
I  had  not  known  his  object,  "  why  were  subpoenas  sent 
to  him,  if  not  to  be  used  with  military  authority?"  Sup- 
pose it  was  correct,  that  the  attorney-general  had  sent  a 
number  of  subpoenas  with  a  view  to  be  used  with  military 
authority,  and  that  the  commander-in-chief  receives  them. 
What  does  he  do  ?  What  would  any  man  suppose  he 
would  do,  or  had  done,  if  he  were  to  form  his  opinion 
from  what  has  been  said  of  his  character  here?  He 
would  suppose  that  he  had  called  about  him  his  janizaries 
and  his  mamelukes  ;  that  he  had  sent  one  detachment  to 
one  part,  and  another  to  another,  through  the  whole 
country,  to  search  for  and  seize  all  persons  who  had  the 
misfortune  to  be  witnesses:  that  this  military  despot  had 
sent  out  his  myrmidons  and  military  men,  and  without 
«any  regard  to  law  or  justice,  had  seized,  confined,  and 
transported  as  many  as  his  arbitrary  caprice  required. 
This,  and  worse  he  would  have  done,  if  his  character 


MOTION    FOR    AN    ATTACHMENT.       353 

were  such  as  it  has  been  depicted.  But  what  did  this 
mighty  lord  of  the  west  do  with  all  these  witnesses  ?  He 
gave  the  subpoenas  to  Mr.  Gaines  to  serve  them,  and 
told  him,  that  if  there  should  be  any  difficulty,  to  apply 
to  a  lawyer  for  advice  how  to  act.  And  this  is  the  mighty  ' 
complaint  against  Wilkinson  and  Gaines! 

Do  gentlemen  think  that  they  make  a  favorable  im- 
pression on  the  public  mind,  when  things  in  themselves 
so  innocent,  are  represented  as  acts  of  the  highest  enor- 
mity? When  things  so  white  are  thus  discolored?  If 
they  do,  they  are  mistaken  in  all  their  calculations. 

But,  sir,  General  Wilkinson  is  guilty  again,  because  he 
ventured  to  ask  Knox,  if  he  were  not  afraid  after  what 
had  happened.  After  what?  "After  I  have  arbitrarily 
seized  and  sent  people  to  a  great  distance."  What  right 
had  Mr.  Randolph  to  put  these  things  in  his  mind,  or 
these  words  into  his  mouth  ?  I  will  venture  to  say,  that 
they  do  not  express  his  real  intention.  It  is  obvious 
that  his  meaning  was,  "  Are  you,  who  are  an  associate  of 
Burr,  and  have  been  of  his  party,  not  afraid  to  appear 
before  me?"  I  will  ask,  whether  it  be  right  to  ascribe 
to  General  Wilkinson  sentiments  which  are  not  his  own, 
and  then  to  condemn  him  for  the  sentiments  thus  im- 
properly imputed  to  him  ?  Yet,  this  is  the  deplorable 
necessity  to  which  gentlemen  are  driven  ! 

Mr.  Randolph  says,  that  Burr  and  Wilkinson  are  anti- 
podes to  one  another.  Indeed  they  are;  but  in  what 
sense  they  are  so  is  a  consideration  which  I  need  not 
mention. 

But,  says  Mr.  Randolph,  "  it  is  the  intention  of  Wilkin- 
son to  ruin  Burr.  He  must  perish  unless  the  other  fall," 
We  were  charged  with  going  too  far,  in  drawing  unau- 
thorized conclusions  and  inferences  ;  but  Mr.  Randolph 
has  gone  much  further  than  any  of  us,  and  has  substituted 
assertion  for  proof.  He  has  stated,  what  is  an  unsup- 
ported assumption,  that  the  reputation  of  Wilkinson 
depends  on  the  destruction  of  Burr.  I  will  not  retort  the 
charge  ;  but  I  will  say,  that  it  is  more  important  to  Burr 
to  destroy  Wilkinson's  reputation.  He  knows  how  impor- 
tant it  is  to  the  accused  to  batter  down  the  reputation  of 
General  Wilkinson.  The  accused  knows  it,  and  professes 
it  by  his  conduct;  because  from  the  commencement  of 
23 


354  TRIAL     OF    AARON    BURR. 

the  prosecution  till  this  time,  the  object  of  every  step 
taken,  and  motion  made,  was  to  beat  down  the  character 
of  General  Wilkinson  :  but  if  they  were  to  accomplish  it, 
it  would  be  the  same  to  their  client ;  it  could  not  save 
him.  But  they  would  say,  that  sf  it  would  not  be  victory, 
it  would  at  least  be  revenge.  The  arguments  of  Mr. 
Randolph  are  so  irrelevant,  and  the  cases  he  adduced  so 
inapplicable,  though  plain  and  not  denied  by  us,  that 
I  shall  not  take  up  time  to  worry  myself  and  the  court, 
in  proving  points  which  are  too  plain  to  admit  of  contro- 
versy ;  but  I  will  trouble  the  court  with  a  few  more 
observations,  without  noticing  his  law  authorities.  I 
shall  boldly  contend,  that  there  was  not  only  not  a  single 
precedent  among  them,  but  that  there  was  not  even  the 
least  justification  for  the  present  motion;  that  they  have 
no  real  bearing  on  the  subject.  They  were  either  general 
principles,  which  are  not  denied,  but  which  do  not  apply 
to  this  subject,  or  relate  to  the  conduct  of  the  officers  of 
the  court,  in  serving  criminal  and  other  process.  But 
he  stated  with  great  solemnity,  that  "  any  force  to  swerve 
a  witness  from  the  right  statement  of  facts,  was  illegal 
and  improper."  In  order  to  apply  this,  he  is  obliged  to 
put  down  his  own  witness.  The  objection  is,  to  the  taking 
testimony  from  the  witness.  But  the  witness  said,  that 
there  was  no  coercion  used  in  taking  his  evidence  ;  on 
the  contrary  that  he  was  treated  with  courtesy.  The  objec- 
tion operates  equally  against  them  ;  for  they  have  taken 
his  affidavit  in  this  city.  Admitting  there  was  no  degree 
of  terror  or  force  used.  This  has  no  sort  of  application. 

But  Mr.  Randolph  says,  that  "  no  force  is  to  be  used 
in  getting  a  witness  to  attend."  This  is  not  law.  If  the 
accused  had  been  committed  in  the  same  district  where 
the  witness  resided,  and  the  judge  had  sent  forward  the 
accused,  he  would  have  been  authorized  to  compel  the 
witness  to  come,  and  if  he  did  not  enter  into  a  recogni- 
zance he  would  have  him  put  in  jail.  The  spirit  of  the 
law  is,  that  a  witness  who  is  material,  and  refuses  to 
enter  into  a  recognizance,  may  be  removed  by  force.  These 
are  the  provisions  of  the  act  of  congress.  Force  may  be 
and  is  used.  The  law  directs  that  it  shall  be  used.  But 
the  position,  if  it  were  correct,  does  not  apply  to  General 
Wilkinson,  because  he  did  not  bring  the  witness. 


MOTION  FOR  AN  ATTACHMENT.         355 

It  was  said  by  Mr.  Randolph,  that  it  was  a  "  most 
dangerous  power  in 'any  government,  to  extort  testimony 
ex  parte"  Is  General  Wilkinson  responsible  for  all  ille- 
galities committed  in  the  western  country?  Mr.  Jack- 
son, they  say,  has  been  guilty  of  great  impropriety  in 
taking  evidence.  But  notwithstanding  this  blame,  which 
they  so  eagerly  attempt  to  attach  to  General  Wilkinson, 
he  has  not  taken  any  evidence  at  all.  All  he  did  was  to 
make  inquiry  and  take  notes  of  Knox's  evidence.  But 
they  ask  why  were  these  notes  taken?  To  satisfy  his 
own  mind  that  he  was  a  material  witness. 

But  there  was  one  observation  which  Mr.  Randolph 
used,  with  great  warmth  and  solemnity,  that  "a  citizen 
of  the  United  States  was  thrown  into  jail  by  corporal 
force,  and  transported  for  the  crime  of  being  a  witness." 
Is  it  not  surprising,  that  they  take  such  ground  as  this? 
Is  it  not  strange  to  hear  gentlemen  of  great  experience, 
who  have  been  intrusted  with  the  management  of  impor- 
tant business,  gravely  speaking  in  this  way  ?  to  hear  Mr. 
Randolph  say,  that  "  a  citizen  has  been  thrown  into  jail 
and  transported?"  These  are  sounding  and  imposing 
words.  Does  not  the  court  know  that  these  are  things  that 
may  be  done  by  law.  The  court  well  knows,  that  under 
the  law  of  congress  it  is  the  business  of  a  judge  to  recog- 
nize witnesses,  and  if  they  refuse  to  enter  iifto  a  recog 
nizance,  or  fail  to  attend,  to  commit  them  and  transpor*- 
them  by  land  or  water,  as  may  be  most  convenient,  tc 
the  place  of  trial.  Is  not  this  power  expressly  given  by 
the  words,  "  it  shall  be  the  duty  of  the  judge  of  that  dis- 
trict where  the  delinquent  is  imprisoned,  seasonably  to 
issue,  and  of  the  marshal  of  the  same  district  to  execute 
a  warrant  for  the  removal  of  the  offender  and  the  wit- 
nesses, or  either  of  them,  as  the  case  may  be,  to  the  district 
in  which  the  trial  is  to  be  had  ?  "  * 

Mr.  Randolph,  without  a  single  tittle  of  evidence,  and 
without  any  principle  of  law  to  support  him,  prays  in 
vain  for  a  favorable  decision.  All  the  authorities  which 
he  introduced  are  extremely  vague  ;  they  do  not  show  in 
the  smallest  degree  that  the  facts  alleged,  if  proved,  would 
amount  to  a  contempt  of  the  court.  Superadded  to  all 
this  long  catalogue  of  black  crimes,  you  are  told,  with 
great  solemnity,  tfeat  a  citizen  of  a  free  country  has  been 


356  TRIAL  OF  AARON  BURR. 

transported  by  military  authority  ;  not  for  a  violation  of 
the  laws  of  his  country,  but  because  he  was  a  witness.  Sir, 
I  will  not  animadvert  on  his  mode  of  conducting  a  cause ;  I 
will  only  remark,  that  those  observations  when  made,  were 
introduced  with  the  utmost  solemnity,  expressed  with 
the  strongest  and  most  forcible  voice,  heard  by  every 
person  within  the  walls  of  this  house,  and  were  certainly 
intended  by  the  speaker  to  excite  indignation  against 
General  Wilkinson,  and  sympathy  for  the  accused  ;  and, 
after  all,  it  amounts  only  to  this,  that  a  witness  may  be 
compelled  to  attend,  if  he  do  not  do  it  voluntarily. 

The  next  observation  was  urged  with  precisely  the 
same  view.  He  seems  to  tremble  when  he  fancies  that 
he  sees  the  prostration  of  all  our  rights,  and  of  our  in- 
dependence;  when  with  uplifted  hands  and  eyes,  and 
elevated  voice,  he  tells  you  of  the  military  sporting  with 
the  rights  of  the  citizens!  If  it  were  mere  sport,  he 
need  not  be  so  much  alarmed.  But  what  was  this  mili- 
tary sport,  against  which  he  so  loudly  declaimed?  It 
was  simply  this,  that  a  captain,  with  the  permission  of 
his  general,  and  after  a  deputation  by  the  marshal, 
served  a  subpoena  on  a  witness,  and  brought  him  with 
him,  being  himself  a  witness  and  obliged  to  come!  I 
am  not  surprised  that  gentlemen  wander  from  the  point, 
because  otherwise  there  would  be  very  little  ground  for 
them  to  stand  upon. 

He  talks  of  the  robbery  and  plunder  of  the  post- 
offices.  •  For  what  purpose  ?  Suppose  the  fact  to  be  as 
it  is  assumed  without  the  slightest  proof.  Let  General 
Wilkinson,  or  any  other  person  who  has  committed  the 
act,  be  prosecuted  according  to  law.  Let  the  parties 
injured  apply  to  the  law,  and  the  parties  who  are  guilty 
be  punished.  But  though  the  acts  thus  ascribed  to 
General  Wilkinson  were  clearly  proved,  they  could  not 
be  considered  as  a  contempt  of  the  court.  Everything 
is  ascribed  to  General  Wilkinson,  in  order  to  furnish  a 
sort  of  pretext  for  denouncing  him  to  the  world. 

Being  fatigued  myself,  and  believing  the  court  to  be 
so  also,  I  shall  not  trouble  it  with  any  further  observa- 
tions. I  trust  that  the  court  will  render  a  correct  judg- 
ment, according  to  the  evidence  and  law. 

While  Mr.  Hay  was  speaking  the  grand  jury  entered, 


WILKINSON'S    LETTER     TO    BURR.      357 

and  their  foreman,  Mr.  Randolph,  addressed  the  court 
to  the  following  effect  : 

May  it  please  the  court : 

The  grand  jury  have  been  informed  that  there  is  in 
the  possession  of  Aaron  Burr  a  certain  letter,  with  the 
post  mark  of  May  I3th,  from  James  Wilkinson,  in 
cyphers,  which  they  deem  to  be  material  to  certain  in- 
quiries now  pending  before  them.  The  grand  jury  are 
perfectly  aware  that  they  have  no  right  to  demand  any 
evidence  from  the  prisoner  under  prosecution,  which 
may  tend  to  criminate  himself.  But  the  grand  jury 
have  thought  proper  to  appear  in  court  to  ask  its  assist- 
ance, if  it  think  proper  to  grant  it,  to  obtain  the  letter 
with  his  consent. 

Mr.  Burr  rose,  and  asked  whether  the  court  were 
about  to  give  an  opinion? 

The  Chief  Justice  stated,  that  the  court  was  about  to 
say  that  the  grand  jury  were  perfectly  right  in  the  opin- 
ion that  no  man  can  be  forced  to  furnish  evidence 
against  himself;  he  presumed  that  the  grand  jury  wished 
also  to  know  whether  the  person  under  presecution 
could  be  examined  on  other  questions,  not  criminating 
himself? 

Mr.  Burr  declared  that  it  would  be  impossible  for 
him,  under  certain  circumstances,  to  expose  any  letter 
which  had  been  communicated  to  him  confiden- 
tially ;  how  far  the  extremity  of  circumstances  might 
impel  him  to  such  a  conduct,  he  was  not  prepared  to 
decide  ;  but  it  was  impossible  for  him  even  to  deliberate 
on  the  proposition  to  deliver  up  anything  which  had 
been  confided  to  his  honor;  unless  it  were  extorted  from 
him  by  law. 

Mr.  Randolph. — We  will  withdraw  to  our  chamber, 
and  when  the  court  has  decided  upon  the  question,  it 
will  announce  it  to  the  grand  jury. 

The  Chief  Justice  knew  not  that  there  was  any  objec- 
tion to  the  grand  jury  calling  before  them  and  examin- 
ing any  man  as  a  witness,  who  laid  under  an  indictment. 

Mr.  Martin  said  there  could  be  no  objection. 

Mr.  Randolph  said  he  was  afraid  that  the  object  of  ^he 

grand  jury  had  been  misunderstood  by  the  court.     The 

rand  jury  had  not  appeared  before  the  court  to  apply 


358  TRIAL     OF    AARON    BURR. 

for  the  person  of  Aaron  Burr  to  obtain  evidence  from 
him,  but  for  a  certain  paper,  which  might  or  might  not 
be  in  his  possession  ;  and  upon  that  paper  being  or  not 
being  in  his  possession,  and  upon  its  being  possible  or 
not  possible  to  identify  that  paper,  it  might  depend 
whether  Aaron  Burr  himself  were  or  were  not  a  mate- 
rial evidence  before  them.  And  then  the  grand  jury 
withdrew. 

When  Mr.  Hay  had  concluded  his  argument,  Mr. 
Mac  Rae  addressed  the  court.  He  was  solicitous,  he 
said,  to  lay  a  communication  before  it,  on  a  circumstance 
which  had  lately  transpired.  The  grand  jury  had  asked 
for  a  certain  letter  in  cyphers,  which  was  supposed  to 
have  been  addressed  by  General  Wilkinson  to  the  ac- 
cused. The  court  had  understood  the  ground  on  which 
the  accused  had  refused  to  put  it  in  their  possession,  to 
be  an  apprehension  lest  his  honor  should  be  wounded, 
by  his  thus  betraying  matters  of  confidence.  I  have 
seen  General  Wilkinson,  sir,  since  this  declaration  was 
made.  I  have  informed  him  of  the  communication 
which  has  thus  been  made  ;  and  the  general  has  ex- 
pressed his  wishes  to  me,  and  requested  me  to  express 
those  wishes,  that  the  whole  of  the  correspondence  be- 
tween Aaron  Burr  and  himself,  may  be  exhibited  before 
the  court.  The  accused  has  now,  therefore,  a  fair  oppor- 
tunity of  producing  this  letter;  he  is  absolved  from  all 
possible  imputation  ;  his  honor  is  perfectly  safe. 

Mr.  Burr. — The  court  will  probably  expect  from  me 
some  reply.  The  communication  which  I  made  to  the 
court,  has  led,  it  seems,  to  the  present  invitation.  I  have 
only  to  say,  sir,  that  this  letter  will  not  be  produced. 
The  letter  is  not  at  this  time  in  my  possession,  and  Gen- 
eral Wilkinson  knows  it. 

Mr.  Mac  Rae  hoped  that  notice  of  his  communication 
would  be  sent  to  the  grand  jury. 

Mr.  Martin  hoped  that  Mr.  Burr's  communication 
also  would  go  along  with  it. 

The  Chief  Justice  was  unwilling  to  make  the  court  the 
medium  of  such  communications. 

Mr.  Mac  Rae  hoped  that  the  court  would  notify  his 
communication  to  the  grand  jury,  and  for  an  obvious 
reason.  When  the  grand  jury  came  into  court  to  ask  for 


INDICTMENTS    BY    GRAND    JURY.      359 

the  paper,  what  did  the  accused  say?  Did  he  declare 
that  it  was  not  in  his  possession  ?  No  :  he  merely  said 
that  honor  forbade  him  to  disclose  it.  The  inference 
undoubtedly  was,  that  he  had  the  paper,  but  could  not 
persuade  himself  to  disclose  it.  And  what,  then,  must 
have  been  the  impression  of  the  grand  jury  ?  A  cloud  of 
suspicions  must  have  fastened  itself  upon  their  minds ; 
suspicions  unjustly  injurious  to  the  character  of  General 
Wilkinson  ;  and  which  the  present  communication  may 
at  once  disperse.  It  is  but  justice  therefore,  to  General 
Wilkinson,  to  whom  the  inquiries  of  the  grand  jury  may 
at  present  relate,  to  give  them  the  benefit  of  this  infor- 
mation. 

Mr,  Burr. — General  Wilkinson,  sir,  is  extremely  wel- 
come to  all  the  eclat  which  he  may  expect  to  derive  from 
this  challenge  ;  but  as  it  is  a  challenge  from  him,  it  is  a 
sufficient  reason  why  I  should  not  accept  it.  But  as  the 
remarks  of  the  last  gentleman  seem  to  convey  some  re- 
proach against  me,  (which  no  man  who  knows  me  can 
believe  me  to  deserve)  it  may  be  proper  to  say,  that  I 
did  voluntarily,  and  in  the  presence  of  a  witness,  put  the 
letter  out  of  my  hands,  with  the  express  view,  that  it 
should  not  be  used  improperly  against  any  one.  I  wished, 
sir,  to  disable  any  person,  even  myself,  from  laying  it  be- 
fore the  grand  jury.  General  Wilkinson  knows  this  fact. 

The  Chief  Justice  then  reduced  these  communications 
to  writing,  and  transmitted  them  to  the  grand  jury. 

Mr.  Burr. — Let  it  be  understood  that  I  did  not  put 
this  letter  out  of  my  possession,  because  I  expected  the 
grand  jury  would  take  up  this  subject ;  but  from  a  suppo- 
sition that  they  might  do  so. 

Mr.  Wickham,  about  to  speak,  was  interrupted  by  the 
entrance  of  the  grand  jury;  when  Mr.  Randolph,  their 
foreman,  informed  the  court,  that  they  had  agreed  upon 
some  presentments  ;  which  he  then  delivered  into  the 
hands  of  the  clerk.  The  clerk  read  as  follows  : 

"  The  grand  inquest  of  the  United.  States,  for  the  dis- 
trict of  Virginia,  upon  their  oaths,  present,  that  Jona- 
than Dayton,  late  a  senator  in  the  congress  of  the  United 
States,  from  the  state  of  New  Jersey  ;  John  Smith,  a  sen- 
ator in  the  congress  of  the  United  States,  from  the  state 
of  Ohio  ;  Comfort  Tyler,  late  of  the  state  of  N:\v  York  ; 


360  TRIAL     OF    AARON    BURR. 

Israel  Smith,  late  of  the  state  of  New  York ;  and  Davis 
Floyd,  late  of  the  territory  of  Indiana,  are  guilty  of  trea- 
son against  -the  United  States,  in  levying  war  against  the 
same;  to  wit,  at  Blannerhasset's  island,  in  the  county  of 
Wood,  and  state  of  Virginia,  on  the  I3th  day  of  Decem- 
ber, 1806. 

"  Upon  the  information  of 

William  Eaton,  Erick  Bollman, 

Peter  Taylor,  Jacob  Allbright, 

Charles  Willie,  John  Graham, 

Samuel  Swartwout,  George  Morgan, 

John  Morgan,  Thomas  Morgan, 

Elias  Glover,  D.  Woodbridge,  jun'r. 

David  C.  Wallace,  Edmund  B.  Dana, 

John  G.  Henderson,  Alexander    Henderson, 

James  Wilkinson,  HughPhelps, 

Jacob  Dunbaugh,  John  Monholland, 

Chandler  Lindsley,  James  Knox, 

William  Love,  Thomas  Hartly, 

Stephen  Welch,  James  Kinney, 

Samuel  Moxley,  David  Fisk. 

Benjamin  H.  Latrobe, 

JOHN  RANDOLPH,  Foreman." 

The  grand  jury,  continued  Mr.  Randolph,  have  no 
further  presentments  to  make.  He  then  delivered  two 
papers  which  they  had  received  from  the  court.  The 
one  was  a  cyphered  letter,  addressed  to  H.  Winbourn ; 
the  other  was  the  letter  to  Colonel  Morgan. 

Chief  Justice. — Mr.  attorney,  have  you  anything  more 
for  the  grand  jury. 

Mr.  Hay. — I  can  have  all  the  indictments  ready  to  be 
laid  before  them  to-morrow. 

Mr.  Taylor  (from  Norfolk). — Is  it   not   customary  for 
the  attorney  to    file    informations    upon    these    present- 
ments?    Is  there  any  necessity  for  detaining  the  jury  ? 
Some  objection  was  made. 

Mr.  Randolph. — May  not  the  bills  be  laid  before  an- 
other grand  jury,  as  the  parties  presented  are  not  now  in 
custody  ? 

Mr.  Hay. — That  course  would  be  productive  of  great 
inconvenience.  All  the  witnesses  are  now  here  ;  and 
they  will  not,  perhaps,  appear  before  another  grand  jur. , 


MOTION  FOR  AN  ATTACHMENT.          361 

and  the  present  jury  are  already  in  possession  of  all  the 
evidence. 

Mr.  Randolph  had  hoped  that  they  would  be  dis- 
charged. He  was  not  anxious  on  his  own  account,  but 
there  was  one  of  the  jury  peculiarly  and  delicately  situ- 
ated, who  wished  to  return  to  his  family. 

Mr.  Taylor  observed  to  the  court  that  a  very  afflicting 
circumstance,  of  a  domestic  nature,  made  him  peculiarly 
anxious  to  return  home. 

Mr.  jFfaywa.5  extremely  sorry  that  he  could  not  gratify 
the  wishes  of  the  jury;  but  the  interest  of  the  United 
States  forbade  him.  He  would  have  the  indictments 
ready  at  any  hour  in  the  morning,  that  the  jury  would 
name.  Nine  o'clock  was  mentioned,  and  the  jury  were 
then  adjourned  to  that  hour. 

Mr.  Wickham  then  addressed  the  court  to  the  follow- 
ing effect : 

I  should  envy  the  gentleman,  last  up,  the  peculiar  fe- 
licity of  never  being  in  the  wrong ;  and  that  happy 
ductility  of  judgment,  which  enables  him  to  apply  other 
gentlemen's  arguments  to  suit  his  own  purposes,  and  to 
view  everything  on  his  own  side  as  perfectly  clear.  The 
praise  of  General  Wilkinson  is  his  great  object.  His 
pure  virtue  and  disinterested  patriotism  constantly  ex- 
cite his  utmost  zeal,  and  form  the  theme  of  his  finest 
eulogies.  Of  this  object  he  has  never  lost  sight ;  but 
his  own  argument  did  not  make  much  impression  on  his 
own  mind  ;  the  further  he  went  on,  the  weaker  it  was. 
Whether  this  were  produced  by  some  supervening 
doubts  on  the  subject,  or  because  what  is  deemed  clear 
requires  no  argument,  I  will  not  undertake  to  determine. 
It  would,  however,  save  much  time,  if  the  gentleman 
would  introduce  a  short  formula,  referring  to  his  former 
arguments  in  praise  of  General  Wilkinson,  instead  of 
perpetually  repeating  them.  On  what  ground  has  the 
gentleman  on  the  other  side  gone  on  to  argue  so  elabor- 
ately and  zealously,  if  he  think  the  case  so  perfectly 
plain  ?  If  it  were  so  perfectly  clear  as  he  affects  to  con- 
sider  it,  why  did  he  address  so  long  an  argument  to  the 
court?  Did  he  believe  so  much  labor  necessary  to 
satisfy  the  minds  of  your  honors  that  the  case  was  so 
very  plain  ? 


362  TRIAL  OF  AARON  B  URR. 

But,  waiving  all  these  considerations,  I  mean  to  con- 
fine myself  to  the  point.  It  is  to  the  court  and  the 
court  alone,  that  I  mean  to  address  myself.  The  gentle- 
man on  the  other  side  insists,  that  we  have  made  no 
specific  charge  against  General  Wilkinson.  We  can  not 
help  it  if  he  do  not  understand  us;  but  we  have  stated 
a  specific  charge  in  terms  as  plain  as  any  in  the  English 
language.  If  he  do  not  comprehend  it,  perhaps  it  is 
because  our  arguments  have  not  as  much  weight  with 
him  as  his  own.  It  is  extremely  difficult  to  conquer 
prejudice.  Our  charge  is,  that  there  have  been  acts  in 
the  highest  degree  illegal,  done  by  General  Wilkinson, 
under  color  of  the  process  of  this  court ;  that  a  citizen 
has  been  dragged  by  military  force  one  thousand  two 
hundred  miles,  for  the  crime  of  being  a  witness,  and 
having  a  subpoena  served  on  him.  We  contend,  that 
this  is  a  direct  invasion  of  the  liberty  of  the  citizen  ;  an 
abuse  of  the  process,  and  a  contempt  of  the  court ;  and 
deserves  a  most  severe  punishment,  if  we  can  bring  it 
home  to  General  Wilkinson,  of  which  we  have  no  doubt. 
We  have  supposed  that  the  judge's  warrant  was  merely 
a  void  act  ;  because  it  was  illegal.  We  have  supposed, 
that  calling  on  the  judge,  an  officer  without  authority,  to 
make  out  a  warrant  which  was  neither  legal  in  form  nor 
substance,  but  a  mere  attempt  to  give  the  semblance  of 
legality  to  what  they  knew  to  be  illegal,  was  an  aggrava- 
tion of  the  offense. 

Gentlemen  say  that  it  was  only  a  judicial  act,  in  which 
a  judge  may  be  mistaken  without  being  liable  for  his 
mistake.  Will  the  gentleman  contend  that  an  illegal 
warrant,  issued  by  a  magistrate  having  no  authority  to 
act,  can  have  any  effect  ?  Whatever  he  does,  without 
having  jurisdiction,  is  void,  and  has  not  the  least  valid- 
ity ;  if  he  err,  his  mistakes  are  not  excused.  But  if  he 
have  jurisdiction,  and  a  right  to  act  on  the  subject,  he  is 
not  responsible  for  errors  of  judgment.  There  is  nothing 
better  settled,  than  that  distinction  between  cases  where 
a  magistrate  has  authority  to  act,  and  cases  where  he  has 
not.  In  the  former,  his  mistakes  of  judgment  are  ex- 
cused ;  but  in  the  latter,  he  is. personally  responsible  for 
his  acts,  and  his  misconception  of  the  law  does  not  in 
the  least  excuse  him. 


MOTION    FOR    AN    ATTACHMENT.       363 

Another  observation  is,  that  in  the  lowest  as  well  as 
in  the  highest  offenses,  all  are  principals.  Every  person 
concerned  in  an  illegal  act  is  equally  guilty,  in  the  eye 
of  the  law,  with  the  person  most  active.  The  question, 
then,  arising  on  this  particular  case,  is  whether  this  act 
of  violence,  this  abuse  of  the  process  of  this  court  were 
procured  or  aided  by  General  Wilkinson,  or  were,  as- 
sented to  by  him,  either  before  or  after  the  imprison- 
ment complained  of?  If  he  acquiesced  in  the  mischief 
done,  or  assisted  in  it,  he  is  as  guilty  as  if  he  had  first 
contrived  it.  Every  person  who  assents  to,  or  aids  in, 
the  completion  of  an  illegal  act,  is  a  trespasser  ab  in- 
itio. 

Instead  of  wandering  into  the  wide  field  of  declama- 
tion, to  palliate  or  justify  those  illegal  acts,  gentlemen 
ought  candidly  to  have  said,  "  We  admit  the  guilt  of 
those  inferior  agents,  by  whom  the  acts  were  committed, 
but  we  insist  that  General  Wilkinson  is  innocent."  No 
sir,  not  choosing  to  rely  on  his  innocence,  they  under- 
take to  show  that  the  act  itself,  if  not  innocent  and 
justifiable,  is  at  least  excusable ;  and  they  censure  us  for 
making  this  motion,  as  if  we  had  no  interest  in  it.  They 
tell  us  that-  "  the  United  States  have  not  been  injured, 
and  make  no  motion."  Sir,  if  the  officer  of  the  United 
States  do  not  choose  to  resent  this  indignity  to  the 
court,  which  goes  to  sap  the  foundation  of  justice,  is 
that  a  reason  why  the  party  injured  should  not  lay  it 
before  the  court  ?  This  is  the  cause  of  the  United 
States ;  it  is  the  cause  of  every  man  who  comes  forward 
as  plaintiff  or  defendant.  Every  man  feels  an  interest 
to  keep  the  fountain  of  justice  pure  and  uninterrupted. 

They  ask,  "  was  the  witness  brought  here  to  speak 
truth?"  I  hope  this  man  did  say  the  truth.  I  am  sure 
he  did  say  the  truth  ;  because  the  witnesses  they  relied 
upon,  to  exculpate  General  Wilkinson,  proved  that 
everything  he  said  was  true.  They  confirmed  not  only 
all  he  said,  but  supplied  every  omission  in  his  chain  of 
evidence.  But,  sir,  has  fear  no  effect?  Has  it  no  opera- 
tion on  the  human  mind  ?  If  this  man  had  nerves 
strong  enough  to  bear  such  treatment,  are  we  sure  that 
the  fortitude  of  others  will  not  be  shaken  ?  If  the  court 
sanctioned  the  practice  of  bringing  witnesses  to  the  bar 


364  TRIAL     OF    AARON    BURR. 

as  criminals,  will  it  not  have  the  practical  effect,  in  many 
instances,  of  preventing  impartial  evidence?  Can  we 
expect  from  a  man  dragged  as  a  felon,  that  manly  dis- 
closure of  facts,  which  distinguishes  a  firm  and  inde- 
pendent mind;  and  which  neither  the  fear  of  offending, 
nor  the  hope  of  pleasing  any  party,  however  powerful, 
can  prevent  from  exculpating  or  criminating  according 
to  truth  and  justice?  Was  not  hope  as  well  as  fear 
used  ?  On  one  side  you  have  a  sum  of  money  and  other 
emoluments ;  on  the  other,  ruin  and  disgrace.  On  the 
one  hand  you  have  every  prospect  of  advantage;  on  the 
other  of  being  dragged  in  chains!  Can  it  be  doubted, 
that  if  this  practice  be  tolerated,  a  witness,  allured  by 
h9pe  on  one  side,  and  alarmed  by  fear  on  the  other,  will 
deviate  from  the  truth?  If  there  be  a  deviation,  it  is 
on  the  side  of  the  prosecution  ;  for  which  way  they  wish 
it  can  not  be  doubted.  The  man  who  avows  maxims  of 
this  sort,  for  the  attainment  of  any  end,  will  not  be 
scrupulous  as  to  the  means  which  he  employs  to  secure 
it.  But  another  view  in  which  this  subject  ought  to  be 
placed  is  this:  Mr.  Burr  in  justice  and  law  stands  on  an 
equal  footing  with  his  accusers.  He  ought,  if  possible, 
to  be  so  in  fact ;  but  we  know  that  it  is  impossible ;  that 
every  disadvantage  operates  against  every  man  who  is  a 
prisoner ;  and  that  every  advantage  is  in  favor  of  the 
prosecution.  On  one  side  all  the  means  of  procuring 
evidence  are  restricted;  on  the  other  the  means  of  com- 
manding testimony  for  the  prosecution  are  unrestrained 
and  abundant.  An  officer  appointed  by  the  government, 
and  liable  to  be  turned  out  of  office  at  its  pleasure, 
summons  the  witnesses.  If  he  be  a  firm  and  indepen- 
dent man,  determined  to  do  his  duty  correctly,  at  all 
hazards,  so  much  the  better;  but  if  not,  we  know  how 
his  bias  will  be.  The  public  treasury  may  be  emptied 
in  collecting  witnesses  and  employing  affidavit-men  ; 
and,  in  addition  to  all  these  means,  if  there  be  unwilling 
witnesses,  or  any  who  suggest  doubts,  they  are  brought 
by  force  to  give  evidence.  But,  if  we  have  unwilling 
witnesses,  who  can  testify  the  truth  in  our  favor,  we 
have  nothing  but  the  naked  process  of  subpcena  to 
compel  their  attendance.  There  are  great  advantages 
on  the  part  of  the  prosecution,  which  ought  not  to  be 


MOTION  FOR  AN  ATTACHMENT.         365 

carried  any  further.  This  is  an  unfair  advantage  to  the 
prosecution,  which  this  court  ought  to  take  from  them. 
But,  "we  have  made  this  motion,  in  order  to  make  im- 
pressions on  the  public  mind."  I  will  not  waste  the 
time  of  the  court  in  inquiring  who  have  wasted 
most  time.  We  have  been  obliged  to  follow  the  gentle- 
men in  this  course.  It  will  be  recollected  by  the  court, 
that  they  have  repeatedly  attempted,  in  this  court,  to 
advocate  and  foment  those  strong  prejudices,  which 
have  been  industriously,  and  but  too  successfully  excited 
against  Mr.  Burr  in  the  country.  They  still  continue  their 
effects  to  create  and  increase  those  prejudices.  I  ask, 
whether  it  were  to  the  public  or  to  the  court  that  those 
remarks  were  addressed  ?  What  has  the  court  to  do 
with  •motives?  But  if  motives  be  discussed,  did  they 
not  wish  to  influence  the  public  mind,  at  the  very  mo- 
ment when  they  accused  us  of  it?  Mr.  Burr  is  not 
obliged  to  account  for  his  motives.  We  are  correcting 
that  influence  on  the  public  mind,  which  has  been  im- 
properly produced.  But  there  is  a  motive,  and  a  very 
powerful  one,  to  justify  this  motion.  We  know  not  how 
long  this  prosecution  may  be  continued.  We  know  not 
how  long  this  practice  may  be  continued.  We  wish  this 
court  to  put  its  veto  upon  it,  and  act  in  terror  em,  to  pre- 
vent such  oppressive  and  unjustifiable  practices  hereafter. 
For  as  long  Us  the  prosecution  lasts,  this  offense  may  be 
repeated,  and  therefore  ought  to  be  repressed. 

But,  "  suppose  General  Wilkinson  to  be  the  man  who 
has  dragged  a  citizen  by  military  force,  from  one  end 
of  the  country  to  another,  it  is  only  a  mistake  of  the 
law."  Does  the  gentleman  forget  the  legal  maxim,  that 
"Ignorance  of  the  law  excuses  no  one  ?"  But  if  this 
were  not  the  law,  and  ignorance  were  an  excuse,  can  it  be 
believed,  that  this  was  a  mistake  proceeding  from  igno- 
rance? General  Wilkinson  is  in  possession  of  the  highest 
military  office  under  the  government.  Can  a  man  in  his 
elevated  station,  be  so  ignorant  as  to  believe,  that  he  can 
drag  a  man,  as  a  felon,  twelve  hundred  miles  for  the 
crime  of  being  a  witness?  If  he  be  this  ignorant  man, 
and  if  he  commit  acts  in  the  highest  degree  tyrannical, 
through  ignorance,  what  shall  we  say  of  the  government 
which  appointed  him  ?  Sir,  the  government  knew  that 


366  TRIAL  OF  AARON  BURR, 

he  was  a  man  of  talents,  and  had  no  right  to  believe,  that 
he  would  do  these  things  ;  or,  if  he  should,  that  he  would 
not  be  personally  responsible  for  them.  No  man  will  be- 
lieve that  the  government  thought,  or  that  he  himself 
thought,  that  he  could  assault  or  imprison  any  man  law- 
fully or  with  impunity.  There  is  hardly  a  boy  out  of  his 
hornbook,  that  does  not  know  better  than  that  such  acts 
could  be  legal.  I  hope  we  shall  hear  no  more  of  the 
ignorance  of  General  VVilkinson. 

But  we  are  told,  that  we  are  guilty  of  a  contradiction 
that  can  not  be  reconciled.  The  gentleman  says,  "  if 
Wilkinson  had  stopped  Knox  and  prevented  him  from 
attending  as  a  witness  it  would  have  been  a  contempt  of 
the  court ;"  and  we  are  asked,  "  if  it  be  a  contempt 
to  stop  him,  how  can  it  be  a  contempt  to  »bring 
him,  as  the  acts  are  opposite 'in  their  nature?"  This 
is  a  most  singular  argument.  Things  may  be  opposite, 
and  yet  be  wrong.  Extremes  are  frequently  wrong.  It 
would  be  a  strange  thing  if  General  Wilkinson  could  have 
carried  this  man  from  Richmond  to  Norfolk,  by  force, 
and  be  liable  for  his  conduct  ;  and  yet  if  he  carried  him, 
in  like  manner,-  from  Norfolk  to  this  place,  that  he  should 
not  be  equally  liable.  These  acts  are  opposite  in  their 
nature,  and  are  equally  contrary  to  law.  Suppose  Knox 
had  been  brought  in  irons,  and  used  cruelly  (for  Wilkin- 
son used  no  more  cruelty  than  suited  his  pufposes),  would 
he  not  be  responsible  for  so  maltreating  a  witness  under 
the  protection  of  the  court. 

But  the  gentleman  says,  that  it  was  stated  to  be  an  at- 
tack on  the  liberty  and  privileges  of  a  citizen,  but  that 
"it  shrinks  into  nothing;  "  that  the  offense  was  only  to 
compel  an  unwilling  witness  to  attend  !  And  does  the 
gentleman  seriously  contend,  in  this  country ,*and  in  this 
court,  that  it  is  a  venial  offense  to  cast  a  man  into  prison, 
and  to  force  him  to  come  twelve  hundred  miles,  with 
only  the  authority  of  a  subpoena?  Are  the  liberties  of 
the  people  of  this  country  dependent  on  so  fine  a  thread, 
that  any  man,  clothed  with  military  authority,  can  use 
his  power  or  force  over  any  citizen  of  the  United  States, 
if  he  have  a  subpoena  in  his  pocket  ?  Any  party  having 
a  cause  in  court,  may  have  a  subpoena  to  summon  any 
other  person.  I  remember,  the  other  day,  that  these  gen- 


MOTION    FOR    AN    ATTACHMENT,       367 

tiemen  admitted,  that  a  subpoena  might  issue  against  Mr. 
Jefferson,  and  that  his  high  station,  of  chief  magistrate, 
did  not  exempt  him  from  it  ;  that  all  the  citizens  of  this 
country  were  on  grounds  of  perfect  equality.  We  agree 
that  their  doctrine  is  correct.  Let  us  see  the  application 
of  it.  If  all  the  people  be  on  terms  of  equality,  they  were 
so  when  the  process  which  issued,  requiring  the  president 
to  give  testimony,  was  served.  Suppose  it  had  been  put 
into  the  hands  of  half  a  dozen  myrmidons,  and  that  after 
serving  it,  they  had  dragged  him  by  force  from  Washing- 
ton to  this  place  ;  what  would  have  been  said  of  such  con- 
duct ?'  Would  it  not  have  been  an  offense  that  ought  to 
be  severely  punished?  Yet  there  is  no  difference 
between  Mr.  Jefferson  and  Knox,  with  respect  to 
their  leg-al  right  of  exemption  from  such  acts  of  vio- 
lence;  and  yet  they  contend,  that  the  treatment 
of  Knox  was  correct  and  lawful.  Are  gentlemen 
serious,  when  they  urge  arguments  like  these?  I  come 
now  to  the  inquiry,  What  are  the  facts  which  are  said  to 
justify  or  excuse  the  ill-treatment  complained  of?  And 
first,  as  to  Mr.'Hall,  whose  warrant,  though  null  and  void, 
is  brought  forward  to  bolster  up  General  Wilkinson.  He 
is  the  mere  puppet  of  Wilkinson.  They  say  that  he  and 
General  Wilkinson  were  at  variance.  It  is  very  probably 
true  ;  and  General  Wilkinson  might  be  at  variance  with 
every  man  at  New  Orleans,  except  his  own  immediate  de- 
pendents. Was  there  no  motive  to  operate  on  Judge  Hall  ? 
Was  there  not  such  a  passion  as  fear?  Hall  knew  what 
Wilkinson  had  done,  and  what  he  could  do  ;  and  when  he 
sent  him  a  message,  to  devise  some  process  to  bring  Knox 
by  force  to  this  court,  Hall  knew,  that  the  requests  were 
commands.  Observe  how  the  transaction  originated. 
Wilkinson's  motives  are  too  obvious  to  admit  of  a  doubt. 
He  sends  for  Knox  ;  treats  him  with  particular  courtesy  ; 
offers  him  his  services  ;  asks  him  if  he  wanted  money,  and 
a  number  of  questions  concerning  Burr;  and  takes  down 
his  evidence  in  writing,  differently  from  the  facts,  and  not 
as  he  told  them.  These  are  all  done  by  General  Wilkin- 
son, without  the  intervention  of  any  other  human  crea- 
ture. It  is  obvious,  that  General  Wilkinson  did  not  go 
directly  to  the  object  he  had  in  view,  but  amused  him  at 
first  with  some  observations  about  Dunbaugh  ;  about  all 


368  TRIAL  OF  AARON  B  URR. 

of  whose  measures  he  knew  more  than  the  witness 
himself.  After  this  solicitude  shown  to  get  testi- 
mony from  the  witness  (and  such  only  as  suited 
his  purposes)  we  find  the  process  of  this  court  used. 
Lieutenant  Gaines,  who  commanded  at  Fort  Stoddert, 
one  hundred,  or  perhaps  two  hundred  miles  from  New 
Orleans,  in  pursuance  of  an  order  from  the  secretary  at 
war  (a  military  order,  gentlemen  will  admit)  is  di- 
rected, after  serving  some  of  the  subpoenas,  sent 
to  him  on  some  persons  under  his  own  command, 
to  go  to  General  Wilkinson,  and  to  deliver  him  the 
subpoenas  ;  and  somehow  or  other,  they  get  from 
General  Wilkinson's  hands  into  his  own.%  We  have 
brought  the  case  of  Knox  before  the  court,  in  order  to 
try  the  principle,  and  to  ascertain  whether  such  practices 
are  to  be  tolerated.  General  Wilkinson  tells  Gaines  that 
Knox  is  an  important  witness  and  must  be  summoned. 
He  recommends  to  hrni  to  summon  him.  Is  not  a  rec- 
ommendation from  a  military  superior  a  command?  and 
was  not  this  command  to  have  this  man  summoned  ?  It 
was  found  that  he  would  not  go.  What  was  the  next 
step  ?  He  did  not  order  Gaines  to  go  and  consult  a  law- 
yer, to  know  what  was  right  and  ought  to  be  done,  as 
gentlemen  allege  in  his  defense  ;  but  how  Knox  was  to 
be  brought,  and  how  his  own  illegal  purposes  were  to  be 
effected.  Gaines  refers  to  lawyers  ;  they  give  advice  how 
this  purpose  is  to  be  attained.  Wilkinson  then  gives 
him  further  orders.  He  advises  him  to  go  and  consult 
Mr.  Hall,  and  obtain  his  advice  and  assistance.  A  sub- 
ordinate officer  is  bound  to  obey  his  master's  commands. 
He  therefore  goes  and  takes  the  advice  of  Mr.  Hall. 
After  getting  his  advice  and  directions,  he  goes  to  the 
witness,  who  is  a  little  sulky:  and  in  order  to  put  him 
into  good  humor,  in  this  pleasant  situation,  he  is  thrown 
into  jail ;  and  then  forced  by  a  military  guard  on  board 
the  vessel,  which  was  under  the  control  of  General  Wil- 
kinson ;  for  he  only  gave  them  permission  to  take  a  pas- 
sage with  himself.  After  the  witness  is  deprived  of  the 
means  of  getting  his  clothes  and  other  necessaries,  and 
sent  on  board  by  Dunbaugh,  some  money  is  wanted  ; 
forty  or  fifty  dollars  must  be  had.  Where  is  this  sum  to 
be  got  ?  Did  General  Wilkinson  give  Ganies  any  order 


MOTION    FOR     AN    ATTACHMENT.        369 

respecting  it,  and  what  ?  He  orders  him  to  take  the 
money  out  of  the  military  chest.  This  proves  that  it  was 
for  a  military,  and  not  a  civil,  purpose.  Why  was  he  rec- 
ommending, advising,  ordering,  and  referring,  this  infe- 
rior officer,  unless  he  were  performing  a  military  service? 
I  mean  no  disrespect  to  Lieutenant  Gaines,  but  the  con- 
trary. For  it  is  evident  that  he  must  have  felt  himself 
in  a  disagreeable  situation  ;  but  he  was  compelled  by  the 
authority  of  his  superior  officer  to  execute  this  request. 
He  obeys  ;  and  when  all  this  had  been  done,  it  was  not 
sufficient.  There  must  be  a  marshal  to  execute  this  pro- 
cess. Lieutenant  Gaines,  from  being  an  officer  of  honor, 
is  turned  into  a  bailiff.  He  was  told,  "  The  marshal  has 
already  appointed  you ;  here  is  a  deputation  by  which 
you  are  constituted  his  deputy  to  perform  this  business. 
It  may  be  unpleasant  for  you,  as  an  officer,  to  do  this 
dirty  business.  You  are  to  have  the  paper  in  your  pocket 
that  authorizes  you  to  do  it ;  but  you  need  not  do  it  your- 
self. You  can  employ  a  sergeant  or  a  soldier  to  do  it." 

There  was  an  evident  perplexity  in  Mr.  Gaines's  testi- 
mony. It  was  a  perplexity  arising  from  the  interference 
of  civil  with  military  duties.  He  found  himself  obliged 
to  wear  over  his  military  garb  the  disguise  of  a  catchpole, 
which,  as  an  officer,  must  have  been  extremely  repug- 
nant to  his  feelings.  The  perplexity  was  not  in  his  narra- 
tive, but  arose  from  the  situation  in  which  he  was  placed 
by  General  Wilkinson. 

It  would  be  a  waste  of  the  time  of  this  court  to  show, 
that  General  Wilkinson  was  the  prime  mover  and  con- 
triver of  all  these  rigorous  and  oppressive  proceedings. 
The  gentlemen  attempt  to  devolve  the  responsibility 
on  Judge  Hall,  who  is  said  to  be  a  man  of  honor  and  re- 
spectability. You  may  judge  how  honorable  his  situa- 
tion must  have  been,  when  he  was  forced  to  obey  Gen- 
eral Wilkinson  in  manifest  violation  of  law !  Must  he 
not  have  felt  himself  degraded,  by  being  compelled  to 
give  an  oppressive  construction  of  the  law,  against  his  own 
judgment?  The  judge  could  not  be  mistaken  as  to  the 
law.  It  is  written  in  plain  terms.  Can  it  be  supposed 
that  so  respectable  a  judge  as  he  is  represented  to  be, 
could  believe  that  he  had  a  right  to  send  a  witness,  as  a 
prisoner,  to  any  place,  and  in  any  manner  he  pleased ; 
24 


370  TRIAL     OF    AARON     BURR. 

and  that  a  witness  loses  the  rights  of  a  citizen  the  moment 
he  is  summoned  ?  The  eulogium  pronounced  on  Judge 
Hall,  disproves  every  argument  they  use  on  the  sub- 
ject. 

But  "  Mr.  Wilkinson  asked  Mr.  Graham  to  consult  Mr. 
Hall."  Mr.  Graham  delivered  his  evidence  in  a  most 
correct  and  proper  manner,  and  free  from  perplexity. 
He  proves  every  feature  in  the  cause  that  was  not  proved 
by  Knox  and  Gaines.  They  rely  on  Mr.  Graham's  testi- 
mony. To  me  it  is  most  marvelous  that  gentlemen  can 
not  perceive  that  his  testimony  goes  directly  to  fix  the 
guilt,  if  there  be  guilt,  on  General  Wilkinson.  He  says 
that  he  was  directed  by  Wilkinson,  to  ask  Judge  Hall  if 
there  were  any  legal  means  of  compelling  this  man  to  at- 
tend as  a  witness  ?  The  evident  meaning  of  this  inquiry 
was  this,  "  Compel  him  by  legal  means  if  you  can,  but  in 
any  event  compel  him  to  attend."  Every  illegal  warrant 
is  void.  He  must  have  known  it  to  be  so.  Is  it  not 
evident  that  this  communication  between  Graham  and 
Hall,  was  made  at  the  instance  of  General  Wilkinson,  and 
with  a  view  to  shelter  himself  under  the  forms  of  law  ? 

But  "  if  he  were  a  military  despot,  he  would  not  have 
regarded  them  !"  When  did  this  happen  ?  In  May,  1807. 
He  must  have  known  what  had  been  done  in  the  United 
States,  and  that  his  conduct  had  excited  universal  horror 
and  indignation  throughout  the  country.  He  is  the 
prime  mover,  and  every  act  done  by  others  is  imputable 
to  him.  They  were  under  his  control,  and  compelled  to 
act  as  they  did  ;  and  perhaps  they  deserve  rather  the 
pity,  than  the  censure  of  the  court.  He,  therefore,  was 
desirous  at  this  time  to  shelter  his  acts  under  the  forms 
and  apparent  sanction  of  the  law. 

But  this  is  not  all,  as  I  had  occasion  to  observe  before. 
A  man  who  sanctions  an  illegal  act,  though  not  the  first 
contriver  of  it,  subjects  himself  to  all  the  consequences  of 
it.  When  Knox  came  on  board  the  vessel,  the  question 
is,  whether  General  Wilkinson  knew  that  it  was  reluc- 
tantly? General  Wilkinson  knew  most  assuredly,  that 
he  was  put  on  board  against  his  will,  by  a  military  guard, 
and  yet  he  did  not  assist  him  ;  for  he  knew  that  it  had 
been  done  in  pursuance  of  his  own  well-understood  wishes 
and  orders.  The  evidence  of  Mr.  Gaines,  collectively 


MOTION    FOR    AN    ATTACHMENT.       371 

considered,  proves  this  clearly.  Gentlemen  say,  that  the 
vessel  was  commanded  by  Mr.  Read.  I  have  seen  the 
young  gentleman,  and  I  hope  he  deserves  the  character 
which  the  gentleman  gives  him  ;  but  it  is  clear,  that  he 
\vas  ready  to  obey  the  superior  commands  of  General 
Wilkinson,  and  that  he  knew  it  to  be  his  duty.  Mr. 
Gaines  said,  that  he  was  obliged  to  apply  to  General  Wil- 
kinson, and  not  to  Franklin  Read  for  a  passage  on  board 
the  vessel.  It  was  the  same  case  with  Mr.  Graham. 
When  several  different  commanders,  as  a  military  and  a 
naval  commander  are  together,  the  inferior  in  rank  acts 
under  the  command  of  the  superior,  and  all  the  navy  of 
the  United  States  at  New  Orleans  was  under  the  com- 
mand of  General  Wilkinson. 

But  what  was  done  at  Hampton  ?  Mr.  Gaines,  in  every- 
thing relative  to  this  transaction,  only  obeyed  his  supe- 
rior officer.  He  therefore  t6ld  Knox,  "  You  are  to  under- 
stand, that  you  are  brought  here  by  virtue  of  a  deputation 
from  Judge  Hall  to  me,  and  not  by  the  military  orders 
of  General  Wilkinson.  You  are  to  understand  that  this 
was  really  the  case."  Why?  Because  General  Wilkin- 
son recommended  it.  These  were  terms  of  mere  civility. 
I  dare  say,  that  Bonaparte,  when  he  gives  orders,  uses 
civil  language  ;  whenever  he  gives  particular  orders  to 
any  of  his  officers,  he  may  say,  "  You  will  oblige  me,  by 
taking  such  a  place."  "  You  will  oblige  me,  by  seizing 
such  a  party."  "You  will  oblige  me,  by  conquering  such 
a  territory."  Or,  "  by  accomplishing  any  other  achieve- 
ment." .  Suppose  the  officer  thus  ordered,  were  to  disobey 
and  excuse  himself  by  saying,  "  I  misunderstood  you  ; 
you  only  said  you  would  be  obliged  to  me,  if  I  would  do 
so."  Would  he  not  be  instantly  punished  or  shot  for 
disobedience  of  orders  ? 

Mr.  Hay. — That  is  only  the  rule  on  military  subjects. 

Mr.  Wickham. — This  was  not  a  civil  transaction  cer- 
tainly. But,  sir,  this  was  really  not  so  bad  after  all,  be- 
cause Knox  had  counsel.  That  counsel  only  expressed 
his  doubts  to  Judge  Hall.  It  is  the  custom  at  New 
Orleans  for  lawyers  to  respect  and  obey  judges  (it  was 
once  so  here)  ;  and  this  was  a  respectful  expression  of 
his  opinion.  The  judge  directed  the  measure,  and  the 
counsel  acquiesced.  He  knew  that  his  doubts  would  be 


372  TRIAL    OF  AARON  BURR. 

of  no  sort  of  consequence,  and  that  Knox  would  be  sent 
round.  He  knew  that  Wilkinson  directed  and  controlled 
all.  The  gentleman  then  went  on  and  assumed  asa/w- 
tnlatum,  that  if  no  action  would  lie  for  this  treatment  to 
Knox,  there  could  be  no  contempt  of  the  court,  for  which 
an  attachment  would  lie.  It  would  be  a  most  extraor- 
dinary doctrine,  that  the  process  of  this  court  could  be 
obstructed  by  the  application  of  force,  or  even  by  the 
fear  of  violence,  and  yet  that  the  court  could  not  punish 
it  by  an  attachment.  But  I  will  admit,  for  the  sake  of 
argument,  that  an  attachment  for  a  contempt  will  not 
lie,  if  no  action  can  be  maintained  by  the  party  injured. 
But  what  then  ?  Will  the  admission  strengthen  his  argu- 
ment ?  Has  the  party  aggrieved  no  redress?  If  to  be 
taken  up,  confined,  and  transported  as  a  felon,  from  one 
part  of  the  country  to  another,  for  no  crime,  will  not 
support  an  action,  then  our  courts  of  justice  may  as  well 
be  shut  at  once.  If  an  action  could  not  be  maintained 
for  such  treatment,  for  what  would  it  lie  ? 
,  "  But  he  had  good  provisions."  That  is  not  the  point 
at  issue.  "  But  he  was  at  liberty  after  he  was  on  board." 
He  was  not  permitted  to  go  on  shore,  and  if  he  were  not 
satisfied  with  his  situation  in  the  vessel,  he  was  at  liberty 
to  walk  overboard.  The  only  sort  of  liberty  which  he 
had,  was  that  of  jumping  into  the  sea,  if  he  thought 
proper. 

I  will  not  go  into  the  law  of  the  case,  because  I  am 
perfectly  convinced  it  is  unnecessary.  We  rely  on  the 
broad  principle,  that  whenever  the  process  of  the  court 
is  abused,  it  will  interfere.  But  you  are  advised  to  imi- 
tate the  judge,  who  some  time  ago  at  Fredericksburg, 
directed  it  to  be  decided  by  a  jury,  whether  a  contempt 
of  the  court  were  intended.  I  will  not  undertake  to  un- 
dervalue the  benefit  of  the  trial  by  jury  on  any  account  ; 
but  there  would  be  a  disadvantage  to  General  Wilkinson, 
in  submitting  it  to  a  jury.  It  would  not  be  a  boon,  but 
a  probable  injury.  If  he  be  in  contempt,  how  is  he  to  be 
exonerated  ?  By  his  own  oath,  and  not  by  the  oath  of 
a  jury.  He  comes  in  and  answers  interrogatories  on  oath, 
and  if  he  deny  the  facts  charged,  he  is  acquitted  ;  or  if  he 
explain  them  to  the  satisfaction  of  the  court,  he  is  equally 
cleared;  but  if  he  refuse  to  answer,  or  if  he  admit  the 


MOTION    FOR    AN    ATTACHMENT.       373 

> 

facts  as  charged,  then  only  is  he  to  be  punished.  But 
he  is  referred  to  his  own  oath,  and  to  his  own  judg- 
ment, for  a  complete  exoneration.  Is  this  an  advantage 
or  a  disadvantage  ?  Is  it  not  more  beneficial  than  to  re- 
fer it  to  the  judgment  and  the  oath  of  a  jury.  There  can 
be  no  doubt  that  a  motion  for  an  attachment  is  sustaina- 
ble, for  the  abuse  of  the  process  of  the  court  in  any  place 
where  it  can  lawfully  issue. 

There  is  one  difficulty  which  the  gentlemen  on  the 
other  side  did  not  mention,  and  it  is  this;  that  the  acts 
were  not  done  in  this  district,  and  that  perhaps  this 
court  has  no  cognizance  over  them.  But  part  of  them 
was  done  in  this  district ;  force  was  used  at  Hampton  ; 
Knox  was  there  continued  on  board  against  his  will,  and 
that  gives  the  court  jurisdiction. 

But,  sir,  the  process  of  attachment  is  auxiliary  to  that 
of  subpoena.  The  process  of  subpoena  goes  throughout 
all  parts  of  the  United  States  ;  and  that  of  attachment 
ought  to  be  commensurate  wJth  it.  It  is  in  vain  to  give  the 
power  to  issue  process,  without  the  power  to  enforce  it  ; 
and  wherever  it  is  abused  or  improperly  executed,  the 
court  can  notice  it  and  punish  the  party  for  not  execut- 
ing it  according  to  law.  This  doctrine,  I  think,  was 
sanctioned  by  the  opinion  of  Judge  Patterson,  in  the 
case  of  Smith  and  Ogden,  in  the  district  of  New  York. 
In  the  case  of  William  Smith,  a  subpoena  had  issued,  to 
summon  the  secretary  of  state,  and  the  secretary  at  war. 
They  failed  to  attend,  though  the  process  had  been  duly 
served  on  them.  A  motion  was  made  to  issue  an  attach- 
ment against  them  for  their  contempt,  on  various 
grounds  explained  by  his  counsel.  The  court  differed  in 
opinion.  One  of  them  (I  believe  Judge  Patterson),  was 
of  opinion  that  a  rule  to  show  cause  why  an  attachment 
should  not  be  issued  against  them,  ought  to  be  granted. 
But  it  is  unnecessary  to  dwell  on  this  point,  as  the  gen- 
tlemen on  the  other  side  took  no  notice  of  it.  In  every 
point  of  view,  therefore,  our  motion  for  the  attachment 
is  sustainable,  and  I  pray  the  court  to  award  it. 

Mr.  Hay. — I  will  set  Mr.  Wickham  right  as  to  one 
fact.  He  had  attended  so  much  to  what  he  was  going  to 
say  himself,  that  "he  did  not  attend  to  what  we  had  said. 
Mr.  Mac  Rae  did  press  the  objection,  and  he  was  an- 


374  TRIAL     OF    AARON    BURR. 

swered  by  Mr.  Botts.  My  own  opinion,  however,  is. 
that  the  power  of  the  court  to  attach  is  commensurate 
with  its  process  ;  and  that  those  gentlemen  who  were 
summoned  would  be  liable  to  an  attachment  for  not 
attending.  I  incidentally  admitted  the  doctrine. 

Mr.  Martin. — I  shall  make  some  few  observations  in 
addition  to  what  has  been  said  by  the  gentleman  who 
preceded  me.  I  shall  endeavor  to  show  that  it  was  a 
military  transaction  from  the  beginning,  till  the  arrival 
of  Mr.  Knox  at  this  place  ;  and  that  its  direct  tendency 
has  been  to  prevent  justice.  Let  us  examine  the  rights 
of  parties  in  a  court  of  justice,  and  the  cause  as  between 
man  and  man.  Each  man  has  a  right  to  compel  the  at- 
tendance of  witnesses,  to  give  evidence  in  support  or 
defense  of  his  rights,  in  any  cause  depending  therein  ; 
one  party  has  no  more  right  than  another  to  compel  the 
attendance  of  witnesses.  How  is  the  law  in  this  respect, 
as  between  the  United  States  and  individuals  accused  of 
crimes  ?  Suppose  a  person  'charged  with  an  offense  is 
arrested  :  the  magistrate  before  whom  he  is  brought  is 
to  hear  the  statement  of  the  United  States,  and  of  the 
prisoner,  and  to  examine  the  witnesses  brought  before 
him  for  the  purpose  of  determining  whether  the  prisoner 
ought  to  be  committed  or  not.  He  is  then  to  bind  the 
witnesses  in  a  recognizance  to  appear  before  the  proper 
tribunal,  at  the  time  appointed  for  the  trial  of  the  pris- 
oner. But  if  a  witness  refuse  to  enter  into  such  recogniz- 
ance, he  is  to  be  committed  to  custody  till  the  time  of 
trial,  in  order  to  secure  his  evidence.  But  this  can  only 
be  done  by  the  examining  magistrate  ;  and  this  is  all 
that  can  be  done  by  the  United  States,  with  respect  to 
the  witnesses  who  happen  to  be  present  at  the  examina- 
tion. But  if  the  United  States  wish  to  have  the  privi- 
lege of  further  testimony,  they  are  to  apply  to  that 
court  of  justice,  before  which  the  trial  is  to  be  had,  for 
subpoenas.  These  subpoenas  must  issue,  be  served,  and 
returned  executed.  After  which,  if  they  fail  to  appear 
on  the  return-day,  an  attachment  may  be  issued  against 
them.  This  is  the  whole  process  in  behalf  of  the 
United  States.  How  is  the  defendant  to  get  his  evi- 
dence? His  privileges  are  the  same.  He  is  to  send 
subpoenas  in  like  manner  for  his  witnesses;  -and  if  they 


MOTION    FOR     AN    ATTACHMENT.      375 

do  not  attend  after  they  are  summoned,  they  are  to  be 
attached.  They  stand,  in  point  of  law,  on  equal  terms; 
but  the  United  States  have  superior  advantages  over 
the  defendant,  if  they  be  compelled  to  resort  to  the 
same  .means  of  enforcing  obedience.  The  power  and 
influence  of  the  United  States  command  much  greater 
diligence  and  alacrity  on  the  part  of  the  officers  who 
are  to  execute  the  process,  than  the  means  of  any  in- 
dividual, laboring  under  the  disadvantage  of  a  public 
prosecution,  can  possibly  procure.  Whatever  means  are 
illegally  used  to  procure  witnesses  for  the  United  States, 
prevent  the  stream  of  justice  from  flowing  purely  ;  it  is  as 
much  an  interference  with  the  equal  administration  of 
justice,  as  it  is  by  illegal  means  to  keep  a  witness  away 
from  the  court.  The  law  only  ought  to  be  resorted  to 
on  the  part  of  the  government  and  on  the  part  of  the 
prisoner ;  and  it  is  as  inconsistent  with  the  law,  that 
testimony  should  be  brought  by  coercion,  as  that  it 
should  be  illegally  kept  away.  It  is  an  act  injurious  to 
the  prisoner,  and  if  we  examine,  which  is  the  most  op- 
pressive and  destructive  to  personal  rights,  we  shall  find, 
perhaps,  that  the  former  is  more  so  than  the  latter.  It 
is  said  to  be  "  a  singular  case."  It  is,  indeed,  a  singular 
case.  I  think,  on  my  conscience,  that  such  a  case  was 
never  heard  of  before ;  and  that  such  pains  were  never 
taken  to  destroy  a  person  who-  was  charged  with  a  crime. 
In  addition  to  the  means  directly  used  by  the  govern- 
ment, many  persons  in  order  to  ingratiate  themselves 
with  it,  have  used  all  the  efforts  in  their  power  for  the 
attainment  of  their  object. 

The  secretary  at  war  wrote  a  letter  to  Lieutenant 
Gaines,  who  was  the  commander  of  a  fort,  directing  him 
to  quit  it  and  execute  this  business.  It  was  a  military 
command  from  the  secretary  at  war,  ordering  him  to  un- 
dertake a  military  journey  for  civil  purposes ;  to  go  to 
General  Wilkinson  ;  to  deliver  him  a  letter  ;  to  serve 
subpoenas,  after  filing  up  the  names  of  the  witnesses 
which  he  should  point  out ;  to  obey  the  instructions  of 
the  attorney-general,  and  then  to  come  to  Virginia.  It 
was  by  a  military  command  that  he  received  and  exe- 
cuted the  subpoenas.  It  was  by  a  military  command  that 
he  was  to  summon  himself,  and  pbey  the  instructions  01 


376  TRIAL  OF  AARON  BURR. 

the  attorney-general  at  New  Orleans.  Did  he  serve  the 
subpoenas  as  a  civil  officer,  or  in  obedience  to  the  orders 
of  the  secretary  at  war?  Did  he  receive  information  and 
directions  from  the  attorney-general  at  New  Orleans,  as 
a  civil  officer,  or  pursuant  to  the  directions  of  the  secre- 
tary at  war?  By  whose  orders  did  he  quit  his  garrison  ? 
To  whom  was  he  referred  ?  To  the  same  person  to  whom 
General  Wilkinson  was  referred.  Who  is  this  attorney- 
general  ?  A  man  probably  of  respectability,  but  ready 
to  be  displaced  unless  he  obeyed  the  government,  and 
assisted  in  facilitating  to  the  means  of  causing  the  wit- 
nesses to  be  brought  hither. 

General  Wilkinson  in  the  next  place  was  to  fill  up  the 
names  of  the  witnesses.  There  have  been  complaints 
against  Mr.  Jackson  for  taking  affidavits,  but  he  did  not 
compel  men  to  give  testimony  ;  that  was  General  Wilk- 
inson's province  at  New  Orleans.  He  was  to  find  out 
who  were  witnesses,  and  fill  up  the  blanks  in  the  sub- 
poenas with  their  names.  Has  not  Mr.  Knox  told  us  that 
Hall  had  a  number  of  printed  interrogatories?  That  he 
and  Mr.  Fort  were  called  on  to  answer  them  on  oath  ? 
And  that  their  declining  to  answer  them,  was  the  cause 
of  sending  them  to  jail  ?  Knox  has  further  informed  us, 
that  it  was  on  Sunday  evening  that  they  were  carried  be- 
fore the  magistrate.  It  is  well  understood  that  Sunday 
is  not  a  legal  day  for  such  purposes.  As  Knox  declined 
answering  those  questions,  he  was  committed  that  night 
to  the  custody  of  the  sheriff,  who  was  to  bring  him  back 
on  Monday  morning,  and  to  whom  he  gave  security  for 
his  appearance  accordingly.  Knox  says  further,  that  the 
next  day  they  appeared  and  were  both  interrogated  ; 
that  he  answered  some  of  the  questions,  but  with  respect 
to  the  other  interrogatories,  he  begged  an  opportunity 
to  consult  a  lawyer,  lest  he  should  commit  himself.  Fort 
refused  to  answer  any  of  them,  and  both  were  put  into 
jail  with  negroes  and  felons.  It  was  by  the  warrant  of 
the  judge,  that  the  sheriff  carried  him  to  jail.  And  for 
what  reason?  Was  it  because  he  refused  to  appear  be- 
fore this  court,  to  give  testimony,  or  for  refusing  to 
answer  the  printed  interrogatories  before  him?  It  was 
certainly  for  the  latter.  Did  the  subpoena  by  which  he 
was  summoned  to  appear,  before  this  court,  require  him 


MOTION    FOR    AN    ATTACHMENT.        377 

to  answer  interrogatories  before  that  judge  ?  No,  sir,  nor 
had  the  judge  any  legal  authority  to  act  he  as  did. 
Afterwards  an  order  was  given  to  the  marshal  to  trans- 
port him  hither  to  give  evidence. 

Let  me,  in  a  few  words,  state  the  improper  manner  in 
which  the  government,  or  its  agents,  proceeded.  Wher- 
ever they  suspected  any  person  of  being  able  to  give  in- 
formation, they  carried  him  before  a  magistrate,  and 
forced  him  to  give  testimony,  all  on  one  side  ;  and  wickedly 
interfered  with  the  purity  of  the  stream  of  justice. 
What,  sir,  would  a  court  of  justice  permit  ex parte  testi- 
mony to  be  read  ?  A  witness,  who  can  give  testimony 
on  the  side  of  the  defendant,  and  for  that  reason  does 
not  suit  their  purpose,  is  passed  and  never  heard.  They 
take  the  evidence  for  the  prosecution  in  such  a  manner 
as  they  think  proper,  and  designedly  trammel  and  shackle 
the  witnesses  so  as  to  be  bound  by  their  own-  ex  parte 
testimony,  when  confronted  with  it  on  their  examination 
in  court.  I  heard  one  of  the  gentlemen,  who  prosecute, 
(Mr.  Wirt)  the  other  day,  with  great  delight,'"expatiate 
on  the  nature  of  ex  parte  evidence.  He  made  a  most 
eloquent  and  correct  speech,  to  prove  that  such  evidence 
is  not  dictated  by  the  witness,  but  by  the  person  who 
takes  the  depositions,  and  that  it  ought  not  to  be  trusted. 
If  ex  parte  testimony  be  so  improper,  when  only  a  motion 
is  made,  or  when  trivial  collateral  points  are  discussed, 
how  much  more  improper  must  such  testimony  be  in  an 
all-important  case,  where  the  honor,  reputation,  and  life 
of  an  individual  are  at  stake  ?  Was  it  for  the  sake  of  the 
government  that  General  Wilkinson  did  all  this  ?  I  will 
admit,  that  holding  an  important  and  lucrative  office 
under  the  government,  he  might  think  that  he  would 
retain  his  present  advantages  and  obtain  future  favor  by 
this  conduct.  But  this  was  not  his  only  motive.  He 
had  everything  at  stake  himself.  He  was  most  deeply 
interested.  All  those  acts  of  tyranny  and  oppression, 
which  he  committed;  the  violation  of  the  constitution, 
the  prostration  of  the  judiciary,  the  arbitrary  imprison- 
ment and  transportation  of  individuals  are  to  be  justified 
by  such  testimony  against  the  gentleman  for  whom  I  am 
now  concerned.  Would  he  not,  when  thus  interested, 
procure  testimony  in  so  garbled  a  state,  that  he  would  be 


3/5  TRIAL  OF  AARON  BURR. 

able  to  prevent  the  disclosure  of  the  whole  truth  on  the 
cross-examination  of  the  witnesses  ? 

Then,  sir,  having  shown  that  all  these  acts  had  a  ten- 
dency to  obstruct  and  divert  the  pure  stream  of  justice, 
let  us  see  what  were  the  immediate  and  direct  acts  of 
General  Wilkinson.  He  invites  Knox  to  his  own  house. 
Sergeant  Dunbaugh  told  him  that  he  had  invited  him. 
Dunbaugh  was  surprised  that  this  great  god  of  New  Or- 
leans, who  trampled  on  their  rights,  and  who  confined  and 
transported  suspected  persons,  should  condescend  to 
converse  with  such  a  man  as  Knox.  He  thought  that  it 
would  be  an  intrusion  for  such  a  man  as  Knox  to  approach 
so  august  and  sacred  a  presence.  Knox  at  first  declines 
going:  but  afterwards  goes.  Wilkinson  invites  him  to 
take  a  seat,  and  began  by  asking  him  if  he  knew  Dun- 
baugh ;  not  that  he  really  wished  to  know  anything 
about  Dunbaugh,  whom  he  already  knew  well,  and  con- 
cerning whom  he  knew  it  was  probable  that  Knox  knew 
nothing;  but  he  used  it  as  an  introduction.  He  then 
proceeded  in  an  insinuating  manner,  about  his  coming 
down  the  river.  "Have  you  got  your  money  yet?" 
"No."  "How  much  is  due  you  ?"  "One  hundred,  or 
one  hundred  and  fifty  dollars."  "  Well  I  can  oblige  you 
with  as  much  money  myself."  Kind,  affectionate  man ! 
What  was  all  this  for?  To  make  interest  with  Knox, 
and  to  induce  him  tp  favor  his  views.  "  Well,  what  did 
you  know  in  all  your  trip  coming  down  ?"  Knox  an- 
swered, that  this  was  not  the  business  he  came  on.  He 
wants  Knox  to  show  him  all  he  knew,  and  offers  him  one 
hundred  or  one  hundred  and  fifty  dollars  as  a  bribe.  It 
was  a  direct  attack  on  the  honesty  of  the  man  ;  to  be 
sure,  it  was  done  very  smoothly,  as  General  Wilkinson 
does  everything,  when  he  chooses.  A  charming  oppor- 
tunity of  getting  one  hundred  and  fifty  dollars,  for  only 
telling  a  few  lies! 

Mr.  Mac  Rae. — I  hope  the  gentlemen  does  not  mean 
to  insinuate  that  General  Wilkinson  solicited  him  to 
say  an  untruth ;  there  is  no  evidence  whatsoever  to  that 
effect. 

Mr.  Martin. — I  state  facts,  and  insist  that  its  direct 
tendency  was  to  get  him  to  swear  to  what  was  untrue. 
I  do  not  say,  that  General  Wilkinson  said,  in  downright 


MOTION    FOR    AN    ATTACHMENT.       379 

plain  terms,  "  I  will  give  you  one  hundred  and  fifty  dol- 
lars for  telling  what  is  untrue,"  but  that  the  direct  tend- 
ency of  his  conduct  was,  to  induce  him  to  swear  to  a 
falsehood,  if  he  were  capable  of  such  baseness;  and 
Knox  declares,  that  the  offer  was  made  in  such  a  manner, 
that  he  considered  it  as  a  bribe.  He  begins  again  to  ask 
him  about  his  affairs;  he  takes  pen,  ink,  and  paper,  and 
notes  down  what  he  said  ;  but  so  differently  from  the  real 
meaning  of  Knox,  that  he  disapproved  of  it,  and  would 
not  proceed  further. 

The  next  thing  we  hear  is,  that  he  receives  subpoenas, 
to  fill  up  the  names  of  the  witnesses.  That  he  requests 
Lieutenant  Gaines  to  find  out  Knox  and  summon  him  ; 
and  that  he  did  summon  him  under  a  military  order. 
When  summoned,  did  Knox  attempt  to  refuse  to  come 
hither?  He  was  willing  to  come,  and  made  no  other 
objection,  except  that  the  notice  was  too  short:  that  in 
his  situation,  he  was  not  prepared  to  set  off  on  a  journey 
of  twelve  hundred  miles,  and  that  he  had  no  money, 
but  expected  to  get  some  soon,  and  then  he  would  come. 
He  only  refused  on  account  of  his  want  of  preparation, 
and  of  money.  Was  this  criminal  in  poor  Knox?  Be- 
cause he  does  not  wear  a  sword  and  epaulets,  and  wants 
the  means  to  enable  him  to  come,  he  is  to  be  treated  as 
a  felon!  (It  was  not  then  known  that  the  miiitary  chest 
was  to  be  drawn  upon,  for  the  purpose  of  hiring  wit- 
nesses to  come.)  Why  did  not  General  Wilkinson  come 
sopner?  He  had  been  subpoenaed  before  Knox.  Why 
did  he  not  obey  the  process  of  the  court  promptly?  He 
takes  his  own  time;  and  only  comes  when  he  finds  it 
convenient.  Was  there  any  attachment  sent  against 
him  after  his  great  delay?  The  court,  grand  jury,  and 
all  of  us,  must  wait  from  day  to  day  to  suit  his  conveni- 
ence and  pleasure;  but  poor  Knox,  because  his  conveni- 
ence was  to  be  a  little  attended  to,  was  treated  like  a 
felon,  thrown  into  jail,  with  negroes  and  criminals;  from 
whence  he  is  sent  on  board  a  prison-ship,  as  soon  as  it  is 
ready  to  sail,  and  brought  hither  by  force.  All  these  are 
General  Wilkinson's  acts.  He  filled  up  the  subpoena 
with  Knox's  name,  and  therefore  caused  him  to  be  sum- 
moned. Here  there  is  a  chasm  in  the  chain  of  the  evi- 
dence ;  but  it  is  easily  supplied.  We  find  him,  in  tbe 


380  TRIAL  OF  AARON  BURR. 

next  place,  in  the  hands  of  the  sheriff.  How  he  came 
into  that  situation  is  not  absolutely  certain  ;  but  no  per- 
son who  hears  me  can  doubt,  that  it  was  by  General 
Wilkinson's  contrivance;  as  also  that  he  was  carried  on 
Sunday  before  Judge  Hall,  who  found  him  in  the  hands 
of  the  sheriff,  and  the  next  day  put  him  into  jail,  because 
he  refused  to  answer  the  printed  interrogatories.  Gen- 
eral Wilkinson  applies  to  Judge  Hall,  to  know  how  to 
compel  Knox  to  this  court.  The  answer  was,  that  some 
person  must  make  an  affidavit,  that  he  was  a  material 
witness  for  the  United  States;  and  this  affidavit  is  made 
by  General  Wilkinson.  The  very  man  who  is  endeavor- 
ing to  bring  him  by  force  is  the  person  who  does  the 
act,  that  was  said  to  be  necessary  to  carry  that  purpose 
into  effect. 

It  is  said,  that  General  Wilkinson  directed  Mr.  Gaines 
to  consult  the  attorney-general  and  some  other  lawyer. 
The  attorney-general  is  the  person  .whom  General  Dear- 
borne,  the  secretary  at  war,  directed  Gaines  to  obey. 
The  other  lawyer  consulted,  is  Mr.  Duncan,  General 
Wilkinson's  aide-de-camp  ;  who  marched  before  him  when 
he  went  into  a  court  of  justice  and  bade  defiance  to  the 
civil  government;  insulted  and  resisted  the  judicial 
authority  of  his  country,  and  placed  the  laws  at  the  feet 
of  the  military.  Mr.  Gaines  found  Knox  in  jail  among 
thieves,  felons,  and  negroes,  and  placed  under  a  guard. 
It  is  said,  that  Gaines  took  out  Knox  in  his  civil  garb, 
and  acted  as  a  deputy-marshal;  but  in  truth  his  military 
garb  hit  it  all.  The  gentlemen  express  doubts  wheYi- 
ever  rights  are  to  be  supported,  but  on  all  other  occa- 
sions, they  entertain  no  doubts  at  all ;  indeed  I  was 
astonished,  that  they  did  not  get  up  and  say,  it  was  the 
clearest  case  in  the  world,  that  the  commitment  of  Knox 
was  legal.  We  know  who  wanted  to  bring  him  to  this 
place.  It  is  said,  that  on  the  subject  of  acting  as  deputy- 
marshal,  Gaines  had  no  previous  communication  with 
General  Wilkinson.  I  believe  it,  because  Gaines  says  so. 
But  the  marshal  had  given  a  deputation  to  Gaines  for 
the  very  purpose  of  bringing  Knox  to  this  place  ;  and 
therefore  it  is  reasonable  to  presume,  that  it  was  contrived 
by  Wilkinson.  They  say  that  a  deputy  is  not  obliged  to 
give  bond  ;  but  I  say,  that  in  the  first  place,  a  deputy 


MOTION    FOR    AN    ATTACHMENT.       381 

marshal  is  bound  to  give  a  bond  for  the  faithful  perform- 
ance of  the  duties  of  his  office,  and  in  the  next  place,  to 
take  the  same  oath  that  the  marshal  takes.  It  is  re- 
quired by  the  act  of  Congress  (see  Graydon's  Digest  of 
of  the  Laws,  p.  247),  that  before  a  deputy  marshal  acts, 
he  shall  take  the  same  oath  with  his  principal,  and  must 
give  bond.  Gaines  was  unwilling  to  do  it  himself,  and 
he  was  informed  that  he  might  do  it  by  another.  Now 
no  principle  is  more  clear,  than  that  a  deputy  can  not 
make  a  deputy,  and  this  act  being  performed  by  Dun- 
baugh  was  therefore  illegal.  But  it  is  said  that  there 
was  no  collusion,  but,  on  the  contrary,  a  variance  between 
Wilkinson  and  Hall.  This  was  the  strongest  reason  in 
the  world  to  make  Hall  dread  to  give  Wilkinson  offense ; 
a  man,  who  but  a  short  time  before  came  into  a  court  of 
justice  and  looked  proudly  around  to  the  court,  insulted 
the  judges,  set  at  defiance  the  writ  of  habeas  corpus,  and 
told  them,  that  every  man  whom  he  suspected,  he  would 
take  up  and  transport  in  like  manner  as  those,  whom  he 
refused  to  release  in  obedience  to  the  writ ;  and  denounced 
two  gentlemen  of  the  bar  as  traitors  to  their  country, 
because  he  knew  that  they  were  the  most  able  and  de- 
termined to  oppose  his  military  usurpation.  Judge  Hall 
had,  theref6re,  great  reason  to  dread  his  displeasure,  and 
a  repetition  of  the  same  treatment. 

Now  let  us  see  how  this  poor  fellow  got  out  of  jail. 
It  was  by  a  deputation  by  deputy  Gaines  to  Sergeant 
Dunbaugh.  The  counsel  for  the  prosecution  examined 
the  order  in  court,  and  they  say  that  Mr.  Gaines  did  not 
sign  it  in  his  military,  but  in  his  civil  character  as  deputy- 
marshal,  because  he  did  nor  sign  himself  "  captain  "  at 
the  bottom.  The  order  to  Dunbaugh  is  not  signed  by 
him  as  deputy-marshal ;  on  the  contrary,  it  command- 
ed him,  "  You  are  hereby  requested  and  commanded  to 
take,  &c.,"  not  "  you  will  oblige  me  by  taking,  &c."  It 
is  addressed  "  to  Sergeant  Dunbaugh,"  and  it  commands 
him,  and  being  from  Captain  Gaines  to  him  as  sergeant, 
it  must  be  in  his  military  character.  The  order  author- 
ized and  commanded  him  to  take  Knox  out  of  jail  and 
and  carry  him  on  board  the  vessel.  If  ever  there  were  a 
military  order  in  the  world,  this  is  one.  Let  us  examine 
the  civil  and  military  character  blended.  As  deputy- 


382  TRIAL     OF    AARON    EURR. 

marshal,  General  Wilkinson  had  no  right  to  order  Gaines 
to  do  anything;  he  was  as  free  from  his  authority  as  I 
am.  As  a  citizen  of  the  world,  he  had  no  right  to  order 
him,  except  he  chose  to  exercise  an  illegal  power.  Dun- 
baugh  was  as  free,  as  a  citizen,  from  the  authority  of 
Gaines  in  his  character  of  lieutenant,  as  any  other  citizen 
of  the  United  States  ;  and,  as  a  -sergeant,  he  was  as  free 
from  his  authority  as  deputy-marshal,  as  I  am  (and  God 
knows  what  I  should  have  been  if  I  had  been  then  at 
New  Orleans) ;  and  yet  Lieutenant  Gaines  told  us,  that 
he  was  so  much  under  the  command  and  in  the  power  01 
Wilkinson,  that  if  he  had  ordered  him  to  put  Knox  in 
irons,  he  would  have  done  it.  What  sort  of  civil  author- 
ity was  it,  by  which  a  military  officer  was  employed  to 
bring  the  witness  to  this  court,  and  that  officer  bound  to 
put  him  in  irons,  if  his  general  ordered  it'  Was  it  not 
under  that  authority  that  he  was  brought  round  without 
a  shirt,  except  a  borrowed  one?  These  are  the  methods 
by  which  testimony  is  to  be  obtained  !  Instead  of  using 
the  legal  means  of  subpoena  and  attachment  to  obtain 
evidence,  witnesses  are  thus  illegally  forced  to  come  and 
give  testimony  in  a  court  of  justice  !  Has  not  this  a 
direct  tendency  to  destroy  the  purity  of  trials? 

But  it  is  said,  that  this  court  has  no  right  'to  take  cog- 
nizance of  the  offense,  because  it  happened  at  New  Or- 
leans. If  General  Wilkinson,  after  having  committed  this 
offense,  had  not  come  hfther,  this  court  could  punish  him, 
the  first  time  it  could  find  him  within  its  jurisdiction,  for 
affecting  a  cause  depending  here.  His  interfering  with 
the  pure  principles  of  the  administration  of  justice  was  a 
contempt  of  the  court.  It  is  a  principle  of  law,  that  every 
interference  with  the  administration  of  justice  is  a  con- 
tempt of  the  court,  and  punishable  wherever  its  process 
can  reach.  Why  is  it  improper  and  punishable  by  at- 
tachment to  insult  a  judge  sitting  in  court  ?  Because  it 
tends  to  intimidate  him  and  prevent  an  impartial  judg- 
ment. Why  are  publications  in  newspapers  concerning 
any  cause  depending  in  a  court  prohibited  by  law  ? 
This  has  been  lately  done  in  this  very  place.  Because 
it  tends  to  make  impressions  unfavorable  to  one  of  the 
parties,  and  its  immediate  tendency  is,  to  obstruct  the 
pure  sources  and  channels  of  justice.  Most  of  these 


MOTION  FOR  AN  ATTACHMENT.  383 

things  had  happened  at  New  Orleans ;  and  the  offense 
was  incipient  there,  but  was  not  completed  till  they  ar- 
rived here.  It  was  a  continued  act.  Knox  wished,  but 
was  not  permitted,  to  come  on  shore  to  get  clothes,  and 
not  to  be  brought  into  a  court  of  justice  like  a  dirty 
beast. 

But  Sergeant  Dunbaugh  went  on  shore  with  him,  con- 
fessedly to  prevent  him  from  missing  his  way,  but  in 
reality  because  they  did  not  choose  to  trust  him  alone  ; 
so  that  he  still  was  confined,  for  they  would  not  trust  him 
by  himself.  The  conduct  of  General  Wilkinson  in  the 
first  movement  was  most  artful.  He  asks  him,  "  Why, 
Mr.  Knox,  are  you  not  afraid  to  appear  before  me?" 
Why  should  he  be  afraid  of  him,  unless  he  referred  to  his 
military  despotism  ?  for  he  had  nothing  to  do  with  him  ; 
and  as  to  his  being  with  Mr.  Burr,  it  was  the  civil  magis- 
trate that  he  should  have  been  afraid  of;  he  could  not 
be  afraid  of  Wilkinson,  for  anything  of  this  kind  ;  but  he 
might  fear  to  be  imprisoned  and  transported  like  others, 
contrary  to  law  and  justice. 

But  the  gentleman  has  said  that  there  was  no  danger 
in  the  union  of  the  civil  with  the  military  character  in 
one  person  ;  and  asks  us  if  the  president  of  the  United 
States  have  not  those  powers  blended  in  him?  What 
civil  authority  has  the  president  ?  It  is  much  circum- 
scribed. He  must  apply  to  a  magistrate  before  he  can 
arrest  any  person  suspected  of  any  crime.  He  is  not  a 
conservator  of  the  peace,  though  he  is  commander-in- 
chief  of  all  our  troops  (which  are  not  many).  He  has 
nothing  to  do  with  the  civil,  that  is  the  judicial  author- 
ity; yet  this  is  the  inference,  that  the  civil  and  military 
authority  were  united  in  the  president. 

We  have  been  told  by  the  gentlemen  that  "  the  court 
had  shown  great  indulgence  towards  us,  lest  it  should 
be  censured,  and  not  for  the  sake  of  doing  justice."  I 
took  it  down  from  his  mouth  as  he  spoke. 

Mr.  Mac  Rae  denied  positively  that  he  had  ever  said 
so. 

Mr.  Martin  insisted  that  he  had  taken  it  down  from  his 
mouth  as  he  had  spoken  the  words. 

Mr.  Mac  Rae  replied  that  he  had  taken  it  from  his  own 
head. 


384  TRIAL  OF  AARON  BURR. 

Mr.  Martin. — I  dare  say  the  gentleman  has  forgotten 
it  ;  his  mind  having  been  occupied  by  great  things  ;  by 
General  Wilkinson.  Sir,  he  said  that  great  indulgence 
had  been  granted  to  Mr.  Burr,  for  which  he  compli- 
mented the  court.  I  wonder  if  he  will  recollect  another 
thing  that  he  said,  that  we  wished  to  imprison  all  the 
people  for  the  sake  of  Aaron  Burr,  while  he  was  stalk- 
ing through  the  streets.  I  can  not  help  congratulating 
the  gentleman,  that  he  may  now  walk  at  large,  with- 
out having  his  eyes  offended  by  seeing  Aaron  Burr  at 
liberty. 

But  the  gentleman  said  that  unusual  mildness  had 
been  shown  to  Mr.  Burr.  Persons  have  been  tried  for 
treason  before  in  the  United  States.  John  Fries  was 
tried  before  that  Jeffries,  Samuel  Chase.  Was  the  treas- 
ury of  the  United  States  thrown  open  and  lavished 
to  employ  other  counsel  in  addition  to  the  attorney  for 
the  United  States,  to  prosecute?  No  persons  were  then 
employed  to  forestal  the  truth,  by  taking  ex  parte  affi- 
davits ;  and  Mr.  Rawle,  the  attorney  for  the  United 
States,  who  prosecuted  according  to  general  usage,  with- 
out any  aid,  was  a  man  whose  mildness  and  benignity 
resembled  an  angel  of  mercy;  and  the  United  States 
sent  for  no  other  witnesses  than  those  summoned  in  the 
usual  course.  But  this  trial  took  place  "  in  the  days  of 
terror,"  under  that  old  dotard,  John  Adams.  Let  us  con- 
trast it  with  the  proceedings  under  the  enlightened  reign 
of  philosophy  and  philanthropy.  Money  has  been 
taken  out  of  the  treasury  to  employ  two  eminent  law- 
yers to  aid  in  the  prosecution  ;  compulsive  affidavits  have 
been  taken  ;  affidavit-men  employed  to  take  them,  and 
witnesses  brought  by  force,  without  relying  on  the  pro- 
cess of  the  court  as  sufficient. 

Mr.  Martin  concluded  by  expressing  his  firm  persuasion 
that  the  whole  transaction  was  military,  and  contrived 
by  General  Wilkinson  ;  that  it  was  clearly  a  contempt 
of  the  court,  and  that  he  hoped  he  would  be  punished 
for  it  by  an  attachment. 

FRIDAY,  June  26th,  1807.  , 

The   court    met   about   nine    o'clock,  and  about    ten 


MOTION  TO  REMOVE  BURR  FROM  JAIL.  385 

o'clock  the  grand  jury  entered,  and  Mr.  Randolph,  their 
foreman,  presented  ten  indictments,  found  true  bills  ;  that 
is,  one  indictment  for  treason,  and  another  for  a  misde- 
meanor against  each  of  the  following  individuals,  viz. 
Jonathan  Dayton,  John  Smith,  Comfort  Tyler,  Israel 
Smith,  and  Davis  Floyd. 

The  Chief  Justice  then  made  a  short  address  to  the 
grand  jury,  expressed  in  elegant  and  appropriate  terms, 
in  which  he  complimented  them  upon  the  great  patience 
and  cheerful  attention  with  which  they  had  performed  the 
arduous  and  laborious  duties  in  which  they  had  been 
so  long  engaged  ;  and  concluded,  by  discharging  them 
from  all  further  attendance. 

The  court  then  adjourned  till  twelve  o'clock.  As  soon 
as  it  met  again, 

Mr.  Botts  requested  the  court  to  remove  Mr.  Burr 
from  the  public  jail  to  some  comfortable  and  conve- 
nient place  of  confinement.  He  depicted  in  very  strong 
terms  the  miserable  state  of  the  prison,  where  he  was 
then  confined.  The  grounds  of  this  motion  are  to  be 
found  in  the  following  affidavit  made  by  some  of  Mr. 
Burr's  counsel,  and  laid  before  the  court : 

We,  who  are  counsel  in  the  defense  of  Mr.  Burr,  at 
the  suit  of  the  United  States,  beg  leave  to  represent  to 
the  court,  that  in  pursuance  of  our  duty  to  him,  we 
have  visited  him  in  his  confinement  in  the  city  jail; 
that  we  could  not  avoid  remarking  the  danger  which  will 
most  probably  result  to  his  health,  from  the  situation, 
inconveniences,  and  circumstances  attending  the  place 
of  his  confinement  ;  but  we  can  not  forbear  to  declare 
our  conviction,  that  we  ourselves  can  not  freely  and 
fully  perform  what  we  have  undertaken  for  his  defense, 
if  he  remain  in  the  jail  aforesaid,  deprived,  as  he  is,  of  a 
room  to  himself;  it  being  scarcely  possible  for  us  to 
consult  with  him  upon  the  various  necessary  occasions 
which  must  occur,  from  all  which  we  believe,  that  he  will 
be  deprived  of  that  assistance  from  counsel,  which  is 
given  to  him  by  the  constitution  of  the  United  States, 
unless  he  be  removed. 

.     "  EDMUND  RANDOLPH. 
"  JOHN  WICKHAM. 

"  BENJAMIN  BOTTS. 
i.— 25 


386  TRIAL  OF  AARON  BURR. 

"  Sworn  to  in  open  court,  by  Edmund  Randolph,  John 

Wickhatn,  and  Benjamin  Botts,  Esquires.     June  25th, 

1807. 

"WILLIAM  MARSHALL,  Clerk." 

The  counsel  for  the  prosecution  were  perfectly  silent 
on  the  motion. 

After  a  long  and  desultory  argument  by  Mr.  Burr's 
counsel  the  court  determined  that  the  prisoner  should  be 
removed  to  his  former  lodgings  near  the  capitol,  pro- 
vided they  could  be  made  sufficiently  strong  for  his  safe 
keeping,  being  of  opinion,  that  the  act  of  congress  au- 
thorized it,  on  the  foregoing  affidavit,  to  make  the  order 
of  removal. 

Mr.  Latrobe,  surveyor  of  the  public  buildings  of  the 
United  States,  was  requested  to  inspect  them  ;  and  upon 
his  report  the  court  passed  the  following  order : 

Whereupon,  it  is  ordered,  that  the  marshal  of  this  dis- 
trict, do  cause  the  front  room  of  the  house  now  occupied 
by  Luther  Martin  Esq.,  which  room  has  been  and  is 
used  as  a  dining-room,  to  be  prepared  for  the  reception 
and  safe  keeping  of  Mr.  Aaron  Burr,  by  securing  the  shut- 
ters to  the  windows  of  the  said  room  by  bars,  and  the 
door  by  a: strong  bar  or  padlock.  And  that  he  employ  a 
guard  of  seven  men  to  be  placed  on  the  floor  of  the  ad- 
joining unfinished  house,  and  on  the  same  story  with  the 
before  described  front  room,  and  also,  at  the  door  open- 
ing into  the  said  front  room  ;  and  upon  the  marshal's  re- 
porting it  to  the  court  that  the  said  room  has  been  so 
fitted  up  and  the  guard  employed,  that  then  the  said 
marshal  be  directed,  and  he  is  hereby  directed,  to  remove 
to  the  said  room,  the  body  of  the  said  Aaron  Burr  from 
the  public  jail,  there  to  be  by  him  safely  kept. 

Mr.  Hay. — My  only  wish  is,  that  this  prosecution 
should  be  regularly  conducted.  Is  it  not  the  usual  prac- 
tice to  read  the  indictment  first  and  then  move  for  the 
venire? 

Mr.  Burr. — I  have  been  furnished  with  a  copy  of  the 
indictment ;  I  have  perused  it ;  and  I  am  ready  to  plead 
not  guilty  to  it. 

Mr.  Wirt. — The  usual  form  requires  the  actual  arraign- 
ment of  the  prisoner;  however  the  court  may  dispense 
with  it,  if  it  think  proper. 


BURR  PLEADS  "NOT   GUILTY,"  387 

Mr.  Hay  was  indifferent  about  the  form,  if  the  law  could 
be  substantially  executed.  He  supposed  that  a  simple 
acknowldgement  of  the  prisoner  was  sufficient  without 
the  customary  form  of  holding  up  his  hand. 

Chief  Justice. — It  is  enough,  if  he  appear  to  the  in- 
dictment, and  plead  not  guilty. 

The  clerk  then  read  the  indictment  against  Aaron  Burr, 
for  treason  against  the  United  States :  which  specifies 
the  place  of  the  overt  act  to  be  at  Blannerhasset's  Island, 
and  the  time  the  loth  day  of  December,  1806. 

When  he  had  concluded,  Mr.  Burr  addressed  the  court : 
"  I  acknowledge  myself  to  be  the  person  named  in  the 
indictment  ;  I  plead  not  guilty  ;  and  put  myself  upon  my 
country  for  trial." 

Mr.  Hay  then  addressed  the  court  on  the  venire  that 
was  to  try  the  issue  between  the  prisoner  and  the  Uni- 
ted States.  He  said  that  he  thought  there  was  an  apparent 
incompatibility  on  this  point,  between  the  twenty-ninth 
section  of  the  act  of  congress  called  the  judicial  act,  and 
the  eighth  amendment  to  the  constitution.  It  was  not 
certain  that  this  act  was  in  force.  It  was  passed  on  the 
24th  of  September,  1789,  and  it  provides  that  "  in  cases 
punishable  with  death,  the  trial  shall  be  had  in  the  county 
where  the  offense  was  committed,  or  where  that  can  not 
be  done  without  great  inconvenience,  twelve  jurors  at 
least  shall  be  summoned  from  thence."  Subsequent  to 
this,  a  constitutional  provision  was  made,  requiring  that 
the  trial  shall  be  held  before  "  an  impartial  jury  of  the 
state  and  district,  wherein  the  crime  shall  have  been  com- 
mitted." If,  then,  this  law  be  in  force,  there  must  be 
twelve  petit  jurymen  summoned  from  Wood  county, 
which  would  make  it  impossible  to  have  the  trial  at  any 
early  day.  Here,  then,  was  the  difficulty.  The  act  was 
passed  in  1789;  the  amendments  to  the  constitution 
were  not  ratified  before  the  I5th  December,  1791.  Does, 
then,  the  constitution  repeal  this  law?  Had  this  eighth 
amendment  formed  an  original  part  of  the  constitution, 
no  more  would  have  been  requisite  than  an  impartial  jury 
from  the  state  and  district  where  the  crime  was  com- 
mited.  Had  congress  passed  this  law,  after  the  constitu- 
tion was  thus  amended,  would  it  not  have  been  a  viola- 
tion of  it  ?  Had  it,  then,  any  force  at  this  time? 


388  TRIAL   OF  AARON  BURR. 

Mr.  Mac  Rae  quoted  the  2d  vol.  of  the  act  of  congress 
page  226,  section  3,  to  show  that  the  first  law  was  con- 
sidered to  be  in  force,  notwithstanding  this  amendment 
to  the  constitution. 

The  Chief  Justice  said,  that  he  had  no  difficulty  on  the 
subject.  He  saw  no  incompatibility  between  the-law  and 
the  constitution.  He  had  no  doubt  that  the  law  was 
still  in  force. 

Mr.  Burr  had  not  considered  the  question  maturely ; 
but  at  present  saw  no  inconsistency  between  them  :  how- 
ever, as  this  law  was  most  probably  intended  for  the  ben- 
fit  of  the  accused,  he  consented  to  waive  the  right. 

Mr.  Wirt. — But  there  is  another  consideration,  sir: 
Can  consent,  take  away  the  error?  In  England,  in  the 
celebrated  case  of  Alexander  Kinloch,  he  consented  to 
draw  one  of  the  jurymen,  and  afterwards  pleaded  this 
error  in  arrest  of  judgment.  After  along  and  elaborate 
argument,  the  court  rejected  his  plea,  though  there  was 
a  division  among  them. 

Mr.  Martin. — In  that*  case  (or  what  is  the  same,  Wed- 
diburn's  case)  there  was  but  one  dissentient  judge. 

Mr.  Hay. — In  the  case  of  Hardy  or  Tooke  a  question 
was  made,  whether  the  jury  must  be  kept  together  dur- 
ing that  long  trial?  Though  the  prisoner  at  the  bar  con- 
sented to  waive  that  right,  the  court  nevertheless  instruct- 
ed the  sheriff  to  keep  them  together. 

Mr.  Botts  protested  against  the  delay  and  inconveni- 
ences which  would  ensue,  from  summoning  the  venire 
from  Wood  county. 

The  Chief  Justice  believed  that  the  provision  was  not 
absolutely  obligatory,  if  both  parties  would  waive  the 
right ;  but  it  was  as  much  so,  if  the  United  States  insisted 
upon  the  right,  as  if  the  prisoner  himself  had  done  so. 
If  the  United  States  insisted  upon  its  execution,  the  law 
must  be  executed,  unless  there  were  sufficient  evidence 
to  satisfy  the  court,  that  such  a  measure  would  violate 
the  amendment  to  the  constitution,  which  requires  a 
trial  to  be  held  by  an  impartial  jury  of  the  state  and  dis- 
trict ;  unless  both  sides  therefore  consented,  it  was  his 
opinion  that  the  court  was  bound  by  this  law. 

Mr.  Hay  said,  that  he  felt  no  disposition  to  delay  the 
trial;  but  he  could  not  think  of  .pledging  himself  to  such 


SUMMONING    A     VENIRE.  389 

a  measure  without  due  deliberation.  He  would  consult 
with  the  gentlemen  associated  with  him  on  this  point, 
and  would  inform  the  court  of  the  result. 

The  counsel  for  the  prosecution  then  retired  from  the 
bar,  and  after  a  few  minutes'  consultation  returned.  Mr. 
Hay  informed  the  court,  that  they  could  not  assume  the 
responsibility  of  consenting  to  such  a  proposition  ;  the 
law  seemed  to  be  imperative  in  its  language,  "twelve  petit 
jurors  at  least  shall  be  summoned."  He  must  therefore 
request  the  court  to  direct  a  venire  of  twelve  men  at  least, 
to  be  summoned  from  Wood  county. 

The  Chief  Justice  inquired  what  number  should  be 
summoned  ?  Different  numbers  were  named,  and  there 
appeared  to  have  been  a  great  difference  in  the  practice. 
The  common  practice  required  forty-eight ;  and  cases 
were  cited,  where  not  less  than  sixty,  or  seventy-two  ju- 
rors had  been  summoned. 

The  court  finally  decided  thafcthe  entry  should  be  made 
for  a  venire  of  forty-eight  jurors;  twelve  of  whom,  at 
least,  were  to  be  summoned  from  Wood  county. 

A  long  conversation  ensued  upon  the  time  when  this 
process  was  to  be  made  returnable ;  or  in  other  words, 
when  the  trial-in-chief  was  to  commence.  Some  con- 
tended that  twenty  days  would  be  sufficient  to  summon 
the  venire  from  Wood  county ;  others,  that  thirty-five 
would  be  necessary.  The  general  opinion  seemed  to  be 
in  favor  of  an  adjournment  till  the  first  Monday  in  August. 

The  Chief  Justice  said  that  he  would  have  preferred 
the  shortest  possible  day  in  consideration  of  the  expense 
and  inconvenience  which  would  result  from  the  delay ; 
unless,  indeed,  more  important  circumstances  should 
have  recommended  a  longer  period  ;  such  as  the  necessity 
and  advantage  of  obtaining  witnesses  from  different  parts 
of  the  country.  No  time  was  determined  upon.  The 
decision  was  postponed  until  to-morrow.  The  orders 
were  to  be  made  out  for  summoning  a  venire,  and  the 
time  of  the  return  to  be  left  blank  and  filled  up  to- 
morrow. 

Mr.  Hay  informed  the  court  that  the  clerk  was  doubt- 
ful whether  the  parties  last  indicted,  should  be  brought 
before  the  court  by  a  capias  or  a  summons.  He  should 
^ow  move  for  a  capias. 


390  TRIAL  OF  AARON  JB  URR. 

The  Chief  Justice  replied  there  could  be  no  diffi- 
culty on  the  subject,  for  that  a  capias  must  certainly 
issue. 

SATURDAY,  June  2/th,  1807. 

The  Chief  Justice  delivered  the  following  opinion  on 
the  motion,  for  an  attachment  against  General  Wilkin- 
son : 

The  motion  now  under  consideration  was  heard  at 
this  time,  because  it  was  alleged  to  be  founded  on  a  fact 
which  might  affect  the  justice  of  the  case  in  which  the 
court  is  about  to  be  engaged,  and  because,  while  the  bills 
were  depending  before  the  grand  jury,  the  court  might, 
without  impeding  the  progress  of  the  business,  examine 
into  the  complaint  which  has  been  made.. 

The  motion  is  to  attach  General  Wilkinson  for  a  con- 
tempt of  this  court,  by  obstructing  the  fair  course  of  jus- 
tice, with  regard  to  a  prosecution  depending  before  it. 
In  support  of  this  charge,  has  been  offered  the  testimony 
of  Mr.  Knox,  who  states  a  conversation  between  General 
Wilkinson  and  himself,  previous  to  his  being  served  with 
a  subpoena,  the  object  of  which  was  to  extract  from  him 
whatever  information  he  might  possess  respecting  the  ex- 
pedition which  was  the  subject  of  inquiry  in  this  court  ; 
and  who  states  also,  that  he  was  afterwards  summoned 
before  Judge  Hall,  who  examined  him  upon  inter- 
rogatories, and  committed  him  to  jail,  whence  he  was 
taken  by  order  from  the  deputy  marshal,  who  was  a  mil- 
itary, as  well  as  a  civil  officer,  and  put  on  board  the  Re- 
venge, in  which  General  Wilkinson  sailed,  for  the  pur- 
pose of  being  brought  from  New  Orleans  to  Richmond. 

That  unfair  practices  towards  a  witness  who  was  to 
give  testimony  in  this  court,  or  oppression  under  color 
of  its  process — although  those  practices  and  that  oppres- 
sion were  acted  in  another  district — would  be  punishable 
in  the  mode  now  suggested,  provided  the  person  who 
had  acted  therein  came  within  the  jurisdiction  of  the 
court,  is  a  position  which  the  court  is  not  disposed  to 
controvert ;  but  it  is  also  believed  that  this  mode  of  pun- 
ishment ought  not  to  be  adopted,  unless  the  deviation 
from  law  could  be  clearly  attached  to  the  person  against 


MOTION  FOR  ATTACHMENT  DENIED.    391 

whom  the  motion  was  made,  and  unless  the  deviation 
were  intentional,  or  unless  the  course  of  judicial  pro- 
ceeding were  or  might  be  so  affected  by  it,  as  to  make  a 
punishment  in  this  mode  obviously  conductive  to  a  fair 
and  correct  administration  of  justice. 

The  conversation  which  took  place  between  General 
Wilkinson  and  the  witness,  on  the  arrival  of  the  latter 
in  New  Orleans,  was  manifestly  held  with  the  intention 
of  drawing  from  him  any  information  which  he  might 
possess,  relative  to  the  expedition  which  was  then  the 
subject  of  inquiry.  In  this  intention,  there  was  nothing 
unlawful.  Government  and  those  who  represent  it,  may 
justifiably  and  laudably  use  means  to  obtain  voluntary 
communications,  provided  those  means  be  not  such  as 
might  tempt  the  person  making  them,  to  give  an  im- 
proper coloring  to  his  repesentations,  which  might  after- 
wards adhere  to  them,  when  repeated  in  court.  The  ad- 
dress stated  to  have  been  employed,  the  condescension 
and  regard  with  which  the  witness  was  treated,  are  not 
said  by  himself  to  have  been  accompanied  with  any  in- 
dications of  a  desire  to  draw  from  him  more  than  the 
'truth.  The  offer  of  money,  if  with  a  view  to  corrupt, 
could  not  be  too  severely  reprehended.  It  is  certainly  a 
dangerous  species  of  communication  between  those  who 
are  searching  for  testimony,  and  the  person  from  whom 
it  is  expected.  But  in  this  case,  the  court  can  not  con- 
template the  offer  as  being  made  with  immoral  views. 
The  witness  had  a  right  to  demand  from  those  he  was 
expected  to  accuse,  a  small  sum  of  money  sufficient  to 
subsist  him  on  his  return  to  his  home.  He  was  asked 
whether,  on  receiving  this  sum,  his  objections  to  giving 
testimony  would  be  removed.  This  was  certainly  a  deli- 
cate question,  but  it  might  be  asked  without  improper 
motives,  and  it  was  pressed  no  further.  This  is  not 
shown  to  be  an  attempt  to  contaminate  the  source  of 
justice,  and  a  consequent  contempt  of  the  court,  in 
which  it  is  administered. 

The  imprisonment  of  Mr.  Knox,  and  the  order  for 
conveying  him  from  New  Orleans  to  Richmond  were  the 
acts  of  Judge  Hall.  Whether  his  proceedings  were  legal 
or  illegal,  they  are  not  shown  to  have  been  influenced 
by  General  Wilkinson,  and  this  court  can  not  presume 


392  TRIAL     OF    AARON    BURR. 

such  to  have  been  the  fact :  General  Wilkinson  therefore 
is  not  responsible  for  them.  They  were  founded,  it  is 
true,  on  an  affidavit  made  by  him  ;  but  there  was  no 
impropriety  in  making  this  affidavit,  and  it  remained 
with  the  judge  to  decide,  what  the  law  would  authorize 
in  the  case. 

All  the  subsequent  proceedings  were  directed  by  the 
civil  authority.  The  agents  who  executed  the  orders  of 
the  judge  were  indeed  military  men,  who  most  probably 
would  not  have  disobeyed  the  commander-in-chief ;  but 
that  officer  is  not  responsible,  in  this  way,  for  having 
failed  to  interpose  his  authority,  in  order  to  prevent  the 
execution  of  the  orders  of  the  judge,  even  if  those  or- 
ders ought  not  to  have  been  given. 

Upon  a  full  view  of  the  subject,  the  case  appears  to 
have  been  this:  General  Wilkinson  was  desirous  that 
the  testimony  of  the  witness  should  be  obtained  ;  and 
aware  of  the  accusations  which  had  before  been  brought 
against  him,  for  the  use  he  had  made  of  the  military 
power,  he  was  desirous  of  obtaining  the  testimony  by 
lawful  means,  and  therefore  referred  the  subject  to  a 
judge  of  the  territory,  under  whose  orders  all  subseqnent 
proceedings  were  taken.  Whether  the  judge  did  or  did 
not  transcend  the  limits  prescribed  by  law,  those  minis- 
terial officers  who  obeyed  his  orders,  can  not  be  sup- 
posed to  have  acted  with  a  knowledge  that  he  had  mis- 
taken his  power.  Should  it  be  admitted  that  this  would 
be  no  defense  for  them  in  an  action  to  obtain  compensa- 
tion for  the  injury,  yet  it  furnishes  sufficient  evidence 
that  no  contempt  was  intended  to  this  court  by  General 
Wilkinson,  that  he  has  not  been  guilty  of  any  intentional 
abuse  of  its  process,  or  of  any  oppression  in  the  manner 
of  executing  it. 

It  is  said  that  Captain  Gaines,  the  gentleman  whom 
the  marshal  appointed  as  his  deputy  for  this  particular 
purpose,  had  not  taken  the  oath  of  office  and  was  there- 
fore not  legally  qualified  to  act  in  that  character.  How 
ever  correct  this  observation  may  be  in  itself,  it  does  not 
appear  to  the  court  to  justify  an  attachment  against 
General  Wilkinson.  The  person  who  sees  in  the  posses- 
sion of  another,  a  commission  as  deputy-marshal,  and 
sees  th^t  others  are  acting  under  that  commission,  ought 


ORDER     ON    POSTPONEMENT.  393 

not  to  be  subjected  to  a  process  of  contempt  for  having 
made  no  inquiries  respecting  the  oath  which  the  law  re- 
quires to  be  taken. 

The  attachment  will  not  be  awarded,  because  General 
Wilkinson  can  not  be  considered  as  having  controlled  or 
influenced  the  conduct  of  the  civil  magistrate,  and  be- 
cause in  this  transaction  his  intention  appears  to  have 
been  not  to  violate  the  laws.  In  such  a  case,  where  an 
attachment  does  not  seem  to  be  absolutely  required  by 
the  justice  due  to  the  particular  individual  against  whom 
the  prosecution  is  depending,  the  court  is  more  inclined 
to  leave  the  parties  to  the  ordinary  course  of  law,  than 
to  employ  the  extraordinary  powers  which  are  given  for 
the  purpose  of  preserving  the  administration  of  justice 
in  that  purity  which  ought  to  be  so  universally  desired. 

The  court  made  the  following  order  on  the  postpone- 
ment of  the  trial : 

Aaron  Burr,  late  of  the  city  of  New  York,  and  state 
of  New  York,  attorney-at-law,  who  stands  indicted  for 
treason,  was  this  day  brought  to  the  bar  in  custody  of 
the  marshal  of  this  district,  and  thereof  arraigned,  and 
pleaded,  Not  guilty  to  the  indictment,  and  for  his  trial 
put  himself  upon  God  and  the  country  ;  whereupon  he  is 
remanded  to  jail.  And  as  the  trial  of  the  said  Aaron 
Burr  can  not  be  had  in  the  county  of  Wood,  where  the 
offense  is  alleged  to  have  been  committed,  without 
great  inconvenience,  it  is  ordered  that  a  venire  facias 
issue,  to  the  marshal  of  this  district  to  be  directed,  com- 
manding him  to  summon  forty-eight  fit  persons  qualified 
as  the  law  directs,  twelve  of  whom,  from  the  said  county 
of  Wood,  to  appear  here  on  the  third  day  of  August  next, 
as  a  venire  for  the  trial  of  the  said  Burr. 

MONDAY,  29th  June. 

Mr.  Hay  laid  the  following  order  of  the  executive 
council  before  the  court : 

IN  COUNCIL,  June  29th,  1807. 

The  board  being  informed  that  an  affidavit  has  been 
ed  in  th.2  circuit  court  of  the  United  States,  for  the 


394  TRIAL  OF  AARON  B  URR. 

Virginia  district,  which  states  that  the  jail  for  the  county 
of  Henrico  and  city  of  Richmond  is  inconvenient  and  un- 
healthy, and  so  crowded  with  state  offenders  and  debtors 
that  there  are  no  private  apartments  therein,  for  the 
reception  of  persons  charged  with  offenses  against  the 
laws  of  the  United  States:  it  is  therefore  advised  that 
the  governor  be  requested  to  tender  the  said  court 
(through  the  federal  attorney  of  the  district  of  Virginia) 
apartments  in  the  third  story  of  the  public  jail  and  peni- 
tentiary house  for  the  reception  of  such  persons  as  shall 
be  directed  under  the  authority  of  the  United  States  to 
be  confined  therein. 

Extract  from  the  Minutes. 
DANIEL  L.  HYLTON,  Clerk  of  the  Council. 

The  following  was  the  order  of  the  court  on  this  sub- 
ject : 

"  Which  tender  the  court  doth  accept  for  the  purpose 
above  mentioned." 

The  final  decision  of  the  motion  to  commit  Aaron  Burr 
to  the  penitentiary  was  postponed  till  to-morrow. 

TUESDAY,  Jui     ^o. 

After  the  court  met,  the  me  ?n  to  commit  Aaron 
Burr  to  the  penitentiary  was  rene  /ed. 

It  was  objected  to  by  his  counsel  on  the  ground  (and 
an  affidavit  was  made  by  them  to  the  same  effect)  that  in 
so  important  a  case,  it  was  essentially  necessary  for  the 
most  uninterrupted  intercourse  to  subsist  between  the 
prisoner  and  his  counsel ;  but  that  the  distance  of  the 
penitentiary,  combined  with  their  own  professional  avo- 
cations, would  necessarily  narrow  and  interrupt  this  inter- 
course. It  was  also  said,  that  by  particular  regulations 
of  the  penitentiary,  the  custody  of  the  prisoner  would  be 
transferred  from  the  marshal  to  the  superintendent ;  and 
that  the  communications  of  the  prisoner  with  his  cou" 
sel  would  be  limited  to  the  very  same  short  period  whic 
was  allowed  to  the  other  iitants ;  that  is,  from  eleven 
to  one  o'clock. 

The  attorney  for  the  Ur  'ed  States  repelled  these  ob- 
jections. 


BURR  REMOVED    TO  PENITENTIARY.    395 

The  Chief  Justice  said,  when  there  was  a  public  jail  not 
unreasonably  distant  or  unfit  for  the  reception  of  the 
prisoner,  and  when  the  court  was  called  upon  on  the  part 
of  the  United  States  to  commit  a  prisoner  to  its  keeping, 
that  he  conceived  himself  bound  to  comply  with  the  re- 
quisition ;  that  when  he  had  given  the  order  for  his 
removal  from  the  jail  to  his  own  lodgings,  it  was  under 
an  expectation  that  the  trial  would  be  prosecuted  imme- 
diately, and  that  the  intercourse  between  the  prisoner 
and  his  counsel  would  be  necessarily  incessant ;  but  as 
a  postponement  had  taken  place,  such  an  intercourse 
would  not  be  absolutely  necessary  ;  under  such  circum- 
stances, therefore,  he  should  direct  the  removal  of  the 
prisoner  to  the  penitentiary,  if  he  were  still  to  continue 
in  the  possession  of  the  marshal,  and  if  his  counsel  were 
to  have  a  free  and  uninterrupted  access  to  him. 

Some  difficulty  having  thus  occurred  on  these  points, 
the  executive  counsel  was  immediately  convened.  In  a 
short  time  the  following  letter  was  submitted  to  the 
court. 

COUNCIL  CHAMBER,  June  3oth,  1807. 
SIR, 

In  pursuance  of  aft  dvice  of  the  counsel  of  state,  I  beg 
leave  through  you,  to  ^iform  the  circuit  court  of  the  Uni- 
ted States  now  sitting  [hat  any  persons  who  may  be  con- 
fined in  the  jail  and  penitentiary  house,  on  the  part  of 
the  United  States,  will  be  considered  as  in  the  custody,  and 
under  the  sole  control  of  the  marshal  of  the  district;  that 
he  will  have  authoirty  to  admit  any  person  or  persons  to 
visit  the  confined  that  he  may  think  proper  ;  and  that  he 
will  be  authorized  to  select  for  the  purposes  aforesaid,  any 
apartment  in  the  penitentiary  now  unoccupied,  that  he 
may  deem  the  most  conducive  to  safety,  health,  and  con- 
venience. 

I  am,  with  great  respect, 

Sir,  your  obedient  servant, 
"  George  Hay,  Esquire.  WM.  H.  CABELL. 

The  court  then  came  to"  'le  following  order: 
In  consequence  of  the  01       made  by  the  executive  of 
apartments  in  the  third  st   fy  of  the  penitentiary  and 
state  prison,  for  persons  who  may  be  confined  therein 


396  TRIAL  OF  AARON  BURR. 

under  the  authority  of  the  United  States,  and  of  the 
foregoing  letter  from  the  governor  of  this  common- 
wealth, it  is  ordered,  on  the  motion  of  the  attorney  for 
the  United  States,  that  so  soon  as  the  apartments  in  the 
third  story  of  the  public  jail  and  penitentiary  shall  be 
fit  for  the  reception  and  safe  keeping  of  Aaron  Burr,  that 
he  be  removed  thereto,  and  safely  kept  therein  by  the 
marshal,  until  the  second  day  of  August  next,  when  he 
shall  be  brought  back  to  the  prison  where  he  is  now 
placed,  there  to  be  guarded  in  like  manner  as  at  present, 
until  the  further  order  of  the  court. 


CITY  OF  RICHMOND, 
MONDAY,  AUGUST  3,   1807. 

On  this  day  the  circuit  court  of  the  United  States  for 
the  fifth  circuit  and  district  of  Virginia  was  held  accor- 
ding to  adjournment. 

Present,  the  Chief  Justice  of  the  United  States: 

George  Hay,  William  Wirt,  and  Alexander  Mac  Rae, 
Esquires,  counsel  for  the  prosecution. 

The  prisoner  was  brought  into  court  from  his  apart- 
ment near  the  Swan  Tavern,  to  which  he  had  been 
removed  on  Saturday. 

Edmund  Randolph,  John  Wickham,  Benjamin  Botts, 
John  Baker,  and  Luther  Martin,  Esquires,  appeared  as 
his  counsel. 

The  court  assembled  at  twelve  o'clock.  An  immense 
concourse  of  citizens  attended  to  witness  the  proceedings 
of  this  important  trial. 

Mr.  Hay  observed  that  he  could  take  no  steps  in  this 
business  until  he  had  ascertained  whether  the  witnesses 
summmoned  on  the  part  of  the  United  States  were 
present ;  he,  therefore,  requested  that  their  names 
might  be  called  over  ;  they  were  more  than  one  hundred 
in  number.  Their  names  were  accordingly  called  in  the 
following  order  : 

*  Thomas  Truxtun,  *  Stephen  Decatur,  *  Benjamin 
Stoddert,  *  William  Eaton,  *  William  Duane,  *  Erick 


NAMES    OF     WITNESSES.  397 

Bollman,  *  Peter  Taylor,  *  Jacob  Allbright,  *  Charles 
Willie,  *  John  Graham,  *  Samuel  Swartvvout,  *Julien 
Dupiestre,  *  P.  H.  M.  Prevost,  Israel  Miller,  *  Samuel 
Skounten,  *  George  Morgan,  *  John  Morgan,  *  Thomas 
Morgan,  *  Nicholas  Perkins,  *  Robert  Spence,  *  George 
Harris,  *  Cyrus  Jones,  *  Thomas  Peterkin,  Elias  Glover, 

*  Simeon    Poole,.   *  Dudley     Woodbridge,     *  David  C. 
Wallace,    *  Edmund    B.Dana,  James    Reid,   *John    G. 
Henderson,     *  Alexander     Henderson,    *Hugh     Phelps, 
Jacob  Dunbaugh,  *  Chandler  Lindsley,  *  John  Mulhollon, 

*  James   Knox,  *  William  Love,  David  Fisk,  *  Thomas 
Hartley,  *  Stephen  S.    Welch,   James  Kinney,   *  Samuel 
Moxley,    *  Edmund    P.    Gaines,     *  Ambrose    D.    Smith, 
George  Peters,  Abner  L.  Duncan,  Lewis   Kerr,  John   A. 
Fort,  *  Benjamin   H.  Latrobe,  Cowles  Meade,  Thomas 
Fitzpatrick,  Thomas  Butler,  Robert  A.  New,  Thomas  T. 
Davis,  Silas   Dinsmore,  Owen  Aston,  William  Davis,  E. 
Kibby,  Theodore  Brightwell,  John  Callier,  Dr.  Bennett, 
Earl    Sproat,    Robert   Wallace,    Walter    Putnam,    John 
Dana,     Alexander     Ralston,    Mrs.     Vanhorne,    Henry 
Jacobs,  Ransome  Peale,  Hamlin   Hicks,  Phelow   Woos- 
ter,  John   Blair,  James  McDowell,  Samuel   N.  Luckett, 
Stockley     D.    Hayes,    Samuel     W.    Butler,    Walter    C. 
Davidson,  John  Barry,  Thomas   H.  Gushing,  Nathaniel 
Evans,  Jacob   Jackson,  William    Piatt,  William    White, 
Jerard  Brooke,  Morgan  Nevill,  Thomas  Callis,  Mr.  Pet- 
erson,   Lieutenant    Swearingen,    Mr.    Weaver,    Colonel 
Osmund,    Major  M.  Porter,  J.  B.    Walback,    Mr.    Van- 
horne,  Dr.    Carmichael,  Dr.    Alston,    Colonel    P.  Read, 
John    Wilkens,    Stephen    Woolberton,  David     McKey, 
Hugh  Allen,  William  Davis. 

[Those  were  present  whose  names  are  printed  in 
italics  ;  the  rest  were  absent.  Such  as  have  an  *  pre- 
fixed to  their  names  were  recognized  at  the  former 
meeting  of  the  court.  The  rest  were  not.  Of  course, 
all  those  whose  names  are  placed  after  that  of  Benjamin 
H.  Latrobe,  have  been  subpcenaed  since  the  adjournment 
of  the  court.] 

Mr.  Hay  begged  leave  to  mention  that  he  had  no- 
thing more  to  submit  to  the  court  this  day.  There 
were  many  of  the  witnesses,  of  whose  places  of  residence 
he  was  ignorant  ;  several  had  not  appeared  ;  many  had 


398  TRIAL  OF  AARON  BURR. 

been  merely  pointed  out  to  him  by  the  attorney-general 
of  the  United  States.  He  observed,  that,  therefore,  he 
had  not  yet  been  able  to  furnish  Mr.  Burr  with  a  list  of 
the  witnesses,  and  a  statement  of  the  places  of  their 
residence,  as  the  law  requires  ;  that,  as  many  of  those 
who  had  been  summoned  and  recognized  had  failed  to 
appear,  he  was  not  ready  to  proceed  with  the  trial  im- 
mediately. He  also  informed  the  court  that  a  list  of  the 
venire  had  been  delivered  on  Saturday  to  Mr.  Burr,  but 
had  since  been  discovered  to  be  inaccurate.  It  became, 
therefore,  necessary  (an  act  of  congress  having  directed 
this  to  be  done  at  least  three  days  before  the  trial)  to 
deliver  a  correct  list  on  this  day  ;  and,  of  course,  the  trial 
would  be  postponed  until  the  requisite  time  had  elapsed. 

The  Chief  Justice  inquired  then  to  what  day  it  would 
be  proper  to  adjourn  the  court. 

Mr.  Hay  could  not  positively  state  by  what  day  he 
should  be  able  to  prepare  his  lists. 

Mr.  Burr  observed,  that  it  was  not  very  probable  that 
he  should  avail  himself  of  any  privileges  which  he  might 
derive  from  any  delay  which  had  occurred  in  not  furnish- 
ing him  wi-th  the  list  of  the  jurors  ;  and  therefore  the 
court  might  adjourn  itself  to  any  day  which  was  conveni- 
ent to  the  attorney  for  the  United  States.  Neither  was 
it  probable,  that  he  should  avail  himself  of  any  objec- 
tions which  might  be  made  to  any  incorrectness  in  the 
names  of  the  jurors,  or  the  places  of  residence,  as  stated 
in  the  list  ;  unless  certain  circumstances  might  occur  after 
the  production  of  the  list,  on  which  he  ought  to  found 
objections  to  it. 

A  short  conversation  then  ensued  upon  the  day  of  ad- 
journment, when  Mr.  Burr  observed,  that  as  it  would 
seem,  in  some  measure,  to  depend  upon  his  own  consent, 
he  should  not  hesitate  to  consent  to  an  adjournment, 
provided  it  did  not  extend  further  than  Wednesday.  Mr. 
Hay  had  no  objection  to  that  day. 

Mr.  Hay  observed,  that  it  might  be  proper  to  have  the 
names  of  the  jury  called  over,  though  not  to  impanel 
them  at  present.  It  would  be  premature  now  to  impanel 
them,  as  the  opposite  counsel  had  not  yet  possessed  a 
sufficient  time  to  examine  the  list,  and  as  the  witnesses 
for  the  United  States  were  not  present. 


LIST    OF    JURORS.  399 

The  names  of  the  jurors  were  accordingly  called. 

The  names  of  the  jurors  summoned  from  Wood  coun- 
ty to  appear  before  the  judges  of  the  United  States, 
for  the  fifth  circuit  in  the  Virginia  district,  on  the  3d  day 
of  August,  1807,  for  the  trial  of  Aaron  Burr,  are — 

Hezekiah  Bucky,  Jacob  Beeson,  James  G.  Laidly,  Wil- 
liam Prince.  James  Henderson,  Nimrod  Saunders,  James 
Compton,  Thomas  Creel,  Hamilton  Morrison,  Anthony 
Buckner,  Yates  S.  Conwell,  David  Creel. 

Wood  county,  district  of  Virginia, 

JOSEPH  SCOTT,  Marshal,  V.  D. 

List  of  the  petit  jurors  for  May  circuit  term,  1807,  con- 
tinued. 

Names  of  the  jurors  summoned  from  the  body  of  the 
district  of  Virginia  for  the  trial  of  Aaron  Burr: 

John  Horace  Upshaw  of  Essex  county,  William  Pope 
of  Powhattan,  Peyton  Randolph  of  Richmond  city,  John 
Bowe  of  Hanover,  John  Roberts  of  Culpeper,  Joshua 
Chaffin  of  Amelia,  Jervis  Storrs  of  Henrico,  Miles  Sel- 
den  of  ditto,  Lewis  Truehart  of  Hanover,  William  Yan- 
cey  of  Pittsylvania,  Thomas  Prosser  of  Henrico,  John 
Staples  of  Albemarle,  Edward  C.  Standard  of  Albemarle, 
Richard  B.  Goode  of  Chesterfield,  Nathaniel  Selden  of 
Henrico,  *Esme  Smock  of  ditto,  William  Wardlow  of 
Richmond  city,  Richard  E.  Parker  of  Westmoreland, 
John  W.  Ellis  of  Hanover,  Thomas  Starke  of  ditto,  Wil- 
liam B.  Chamberlain  of  Henrico,  David  Lambert  of  Rich- 
mond city,  Randolph  Harrison  of  Cumberland,  William 
Hoomes  of  Caroline,  Overton  Anderson  of  Richmond 
city,  Hugh  Mercer  of  Spottsylvania,  David  Bullock  of 
Richmond  city,  Jerman  Baker  of  Cumberland,  *Edward 
Carrington  of  Richmond  city,  Robert  Haskins  of  Ches- 
terfield, William  R.  Fleming  of  Goochland,  George  W. 
Smith  of  Richmond  city.  Armistead  T.  Mason  of  Lon- 
don, Dabney  Minor  of  Albemarle,  William  McDaniel  of 
Stafford,  William  White  of  Hanover. 

JOSEPH  SCOTT,  Marshal,  V.  D. 

[The  two  whose  names  are  marked  with  an  *  were  ab- 
sent :  all  the  rest  were  present.] 

Mr.  Hay  then  requested  the  marshal  to  deliver,  as 
soon  as  possible,  a  correct  copy  of  this  list  to  the  oppo- 
site counsel. 


400  TRIAL  OF  AARON  BURR. 

Mr.  Peyton  Randolph  inquired  whether  this  were  a 
proper  opportunity  for  any  man  on  that  panel  to  state 
his  objections  to  the  service. 

The  Chief  Justice  answered  that  it  would  be  better  to 
waive  any  objections,  until  the  jury  were  about  to  be  im- 
paneled. 

Mr.  Hay  wished  such  of  the  witnesses  as  had  not  ap- 
peared before,  to  be  recognized  as  the  others  had  been. 
And  accordingly  Messrs.  Duncan,  Nevill,  M'Dowell,  and 
Peters,  were  recognized  by  the  clerk. 

The  deputy-marshal  was  then  about  to  adjourn  the 
court,  when  Mr.  Burr  recalled  to  the  recollection  of  the 
court,  the  motion  which  he  had  made,  on  a  former  occa- 
sion, for  a  subpoena  duces  tecum  addressed  to  the  presi- 
dent of  the  United  States.  That  motion  had  been  part- 
ly complied  with.  He  wished  to  know  of  the  court, 
whether  it  were  not  a  matter  of  right  for  him  to  obtain  a 
subpoena  duces  tecum.  If  it  were  not,  he  should  then  lay 
a  specific  motion  before  the  court. 

The  Chief  Justice  did  not  believe  it  to  be  the  practice 
in  Virginia  to  obtain  such  a  subpoena  upon  a  mere  appli- 
cation to  the  clerk.  The  motion  must  be  brought  before 
the  court  itself. 

Mr.  Hay  said  that  he  would  say  nothing  on  this  subject, 
until  he  understood  the  object  of  the  application  ;  that 
if  it  were  to  obtain  the  letter  which  was  not  formerly  fur- 
nished, he  would  inform  the  opposite  counsel  that  he 
had  it  now  among  his  papers,  and  was  ready  to  produce 
it. 

Mr.  Burr. — That  is  one  object  of  the  application.  An- 
other is  to  obtain  a  certain  communication  from  General 
Eaton  to  the  President  of  the  United  States,  which  is 
mentioned  in  his  deposition. 

Mr.  Hay  said  that  he  was  not  certain,  whether  he  had 
that  communication,  but  believed  that  it  was  among  his 
papers.  If  it  were  there,  he  would  certainly  produce 
it. 

Mr.  Burr. — But  if,  after  a  search,  the  gentleman  find 
that  he  has  not  that  paper,  will  he  consent  out  of  court, 
to  issue  a'subpcena  to  the  President  of  the  United  States, 
under  the  qualification  I  have  mentioned?  I  wish  not 
at  the  present  exigency,  to  derange  the  affairs  of  the  gov- 


SUBPCENA     DUCES     TECUM.  401 

ernment,  or  to  demand  the  presence  of  the  executive 
officers  at  this  place.  All  that  I  want  are  certain 
papers. 

Mr.  Hay  said  that  he  could  not  consent  to  it ;  he 
would  rather  that  a  regular  application  should  be  made 
for  it  to  the  court. 

Mr.  Burr. — Then,  sir,  I  shall  move  for  a  subpoena  duces 
tecum,  to  the  President  of  the  United  States,  directing 
him  to  attend  with  certain  papers.  This  subpoena  will 
issue  as  in  the  former  instance.  I  shall  furnish  the  clerk 
with  the  necessary  specification  of  the  paper  which  I 
require. 

WEDNESDAY,  August  5th,  1807. 

Present,  John  Marshall,  chief  justice  of  the  United 
States. 

Mr.  Hay  requested  that  the  names  of  the  witnesses 
might  be  called  over,  who  had  not  appeared  on  Monday, 
and  of  whose  arrival  he  was  not  yet  informed. 

The  following  witnesses  answered  to  their  names : 
Charles  Willie,  John  Graham,  Samuel  Swartwout,  Julien 
Dupiestre,  P.  H.  M.  Prevost,  Israel  Miller,  William  Eaton, 
George  Morgan,  Cyrus  Jones,  Simeon  Poole,  Dudley 
Woodbridge,  John  G.  Henderson,  Samuel  Moxley,  Am- 
brose D.  Smith,  John  A.  Fort,  and  Hugh  Allen. 

The  names  of  the  witnesses  being  called  over,  Mr.  Hay 
observed  that  the  court  would  perceive  that  the  number 
of  the  witnesses  attending  was  greater  than  it  had  been 
on  Monday;  that  he  presumed  the  whole  of  them  would 
be  here  in  a  few  days ;  that  he  had  no  doubt  they  would 
go  into  the  trial  during  the  present  term  ;  but  that  he 
could  not  now  furnish  the  accused  with  such  a  list  of  the 
witnesses  as  was  required  by  law  ;  for  though  he  knew 
their  surnames,  yet  he  was  ignorant  of  the  Christian 
names  of  many,  and  their  places  of  residence.  He 
was  not  certain  to  what  day  the  court  might  proper- 
ly adjourn. 

Chief  Justice. — It  will  make  no  sort  of  difference  to 
the  court,  whether  it  adjourn  from  day  to  day,  or  to  a 
certain  day. 

After  a  short  conversation  between  the  counsel  on  both 
26 


402  TRIAL     OF    AARON    BURR. 

sides,  it  was  agreed  that  a  list  should  be  furnished  of  the 
witnesses,  and  of  their  places  of  abode,  so  far  as  they  had 
been  ascertained,  and  that  a  postponement  should  take 
place  until  Friday. 

Mr.  Hay  proposed  an  arrangement,  as  to  the  mode  of 
conducting  the  trial,  the  object  of  which  was  to  save  time. 
He  said  that  the  course  pursued  in  Great  Britain  on  such 
occasions,  is  for  the  counsel  for  the  prosecution  to  open 
his  case  and  examine  all  his  witnesses,  before  anything 
is  said  on  the  other  side:  for  the  prisoner's  counsel,  after- 
wards, to  state  the  case  on  his  part :  to  proceed  to  ex- 
amine his  witnesses,  and  to  make  such  observations  upon 
the  whole  of  the  testimony  as  he  should  think  proper ; 
and  for  the  counsel  for  the  prosetution  to  terminate  the 
arguments  by  a  reply.  This,  he  said,  was  a  convenient 
and  expeditious  method.  But,  in  Virginia,  the  practice 
is  as  follows:  the  attorney  for  the  United  States,  or  for 
the  commonwealth,  states  the  case  on  the  part  of  the 
prosecution,  and  the  counsel  for  the  accused,  also  makes 
a  statement  on  his  part,  after  which  the  evidence  is 
gone  through  on  both  sides,  beginning  with  the  witnesses 
against  the  prisoner.  This  being  done,  the  counsel  for 
the  prosecution  commences  the  argument,  is  answered 
by  the  counsel  for  the  prisoner,  and  then  concludes  the 
debate.  Mr.  Hay  observed,  that  this  mode  was  much 
more  tedious  than  that  which  prevails  in  Great  Britain  ; 
and  therefore  ought  particularly  to  be  avoided  in  con- 
ducting the  trial  of  Aaron  Burr,  in  which  the  number  of 
counsel  employed,  and  of  witnesses  to  be  examined,  is  so 
great,  especially  as  other  trials  equally  tedious  are  about 
to  take  place — Herman  Blannerhasset  being  now  in  cus- 
tody, and  Jonathan  Dayton  known  to  be  in  this  neigh- 
borhood. 

Mr.  Wickham  wished  time  to  consider  the  subject,  not 
being  prepared  to  determine  whether  the  counsel  for  Mr. 
Burr  would  accede  to  the  proposal;  as  this  was  a  new 
mode  of  proceeding,  to  which  they  were  not  accustomed, 
they  wished  to  consult  their  client,  who,  on  this  day, 
was  not  in  court. 

Mr.  Hay  said  he  did  not  think  this  a  matter  of  con- 
sent ;  the  court  ought  to  fix  the  practice. 

The  Chief  Justice  observed  that  it   would   be   better 


ADJOURNMENT.  403 

to  bring  on  this  question  on  Friday :  since  gentlemen, 
in  the  meantime,  might  settle  it  among  themselves;  say- 
ing, moreover,  that  he  should  feel  a  difficulty  in  depart- 
ing from  the  settled  mode  of  practice  in  this  country, 
though  he  thought  the  English  mode  better  than  ours. 
The  best  moL,e  appeared  to  him  to  be  this :  that  the  case 
should  be  opened  fully  by  one  of  the  gentlemen  on  the 
part  of  the  United  States;  then  opened  fully  by  one  of 
the  counsel  on  the  other  side;  that  the  evidence  should 
next  be  gone  through,  and  the  whole  commented  upon 
by  another  of  the  gentlemen  employed  by  the  United 
States;  who  should  be  answered  by  the  rest  of  the  at- 
torneys for  Mr.  Burr;  and  one  only  of  the  coun- 
sel for  the  United  States  should  conclude  the  argu- 
ment. 

This  mode  was  not  approved  of  by  Mr.  Hay,  as  there 
were  to  be  several  trials ;  he  feared  that  it  would  impose 
too  much  labor  on  the  counsel  for  the  prosecution. 

Some  further  conversation  passed,  but  no  arrangement 
was  determined  on. 

FRIDAY,  August  7,  1807. 

Present,  John  Marshall,  chief  justice  of  the  United 
States;  and  Cyrus  Griffin,  judge  of  the  district  of  Vir- 
ginia, 

The  witnesses  were  again  called  over,  and  several  who 
had  not  been  present  before,  appeared,  and  were  recog- 
nized to  attend  until  discharged  by  the  court. 

The  counsel  for  the  United  States,  however,  not  being 
as  well  prepared  to  go  into  the  trial,  as  they  expected 
to  be  (many  of  their  witnesses  being  still  absent),  the 
trial  was  further  postponed  and  the  court  adjourned  un- 
til Monday  next,  at  twelve  o'clock. 

In  the  course  of  this  day,  a  difficulty  was  suggested 
by  Major  Scott,  the  marshal  of  the  Virginia  district,  as 
arising  out  of  the  order  of  the  court,  by  virtue  of  which 
Mr.  Burr  had  been  removed  from  the  penitentiary  house, 
to  his  present  lodgings.  He  stated  that  he  had  been 
informed  from  good  authority,  that  the  secretary  of  the 
treasury  had  declared,  that  he  would  not  allow  his 
charge  of  seven  dollars  per  day  for  the  guards  employed 


404  TRIAL     OF    AARON    BURR. 

for  the  safe-keeping  of  the  prisoner;  and,  therefore,  he 
might  lose  that  sum,  which  he  had  hitherto  been  advanc- 
ing out  of  his  own  pocket. 

The  Chief  Justice  declared  the  firm  conviction  of  the 
court,  that  the  order,  heretofore  made,  was  legal  and 
proper;  that  the  payments  made  in  pursuance  thereof, 
would  be  sanctioned  by  the  court,  and  ought  to  be  al- 
lowed by  the  secretary  of  the  treasury.  He  could  not 
believe  that  the  secretary  would  finally  disallow  those 
items  in  the  marshal's  account.  But  as  the  officer  of 
the  court  ought  not  to  be  subjected  to  any  risk  in  obey- 
ing its  directions ;  and,  if  the  secretary  should  refuse  to 
allow  him  a  credit  for  the  money  paid,  the  court  had  no 
power  to  compel  him  to  do  so;  and  the  situation  of  the 
marshal  was  such,  that  he  dared  not  enter  into  a  contro- 
versy with  the  secretary ;  the  court  was  disposed  to  re- 
scind the  order,  unless  some  arrangement  could  be  made 
by  Mr.  Burr  and  his  counsel,  for  the  indemnification  of 
the  marshal. 

Mr.  Burr  declared  that  an  offer  had  already  been 
made  on  his  part  to  indemnify  the  marshal,  and  that  he 
was  still  ready  and  willing  to  give  him  satisfactory 
security  that  the  money  should  be  paid  him,  in  case  the 
secretary  of  the  treasury  should  refuse  to  allow  the  credit. 

Some  desultory  conversation  ensued,  but  nothing 
positive  was  agreed  upon  ;  but  it  appeared  to  be  under- 
stood, that  security  was  to  be  given  to  Major  Scott,  and 
that  Mr.  Burr  was  to  remain  in  his  apartment  near  the 
Swan  Tavern. 

MONDAY,  August  loth,  1807. 

After  the  court  met,  Herman  Blannerhasset  was 
brought  into  court. 

The  following  gentlemen  appeared,  and  were  recog- 
nized. Return  J.  Meigs,  Maurice  P.  Bellnap,  Charles 

Duvall,  James  Taylor,  Tunis ,  Bennett  Cook,  Heze- 

kiah  Lewis,  and  G.  B.  Vanhorne. 

Mr.  Wirt  moved  the  court  to  discharge  Dr.  Wardlaw, 
one  of  the  venire.  His  wife  was  in  extreme  danger,  and 
required  the  assistance  of  a  sea  voyage.  The  vessel 
would  sail  to-morrow. 


IMPANELING    THE    JURY.  405 

Chief  Justice. — Is  the  court  to  understand  that  there  is 
no  objection  to  this  motion? 

Mr.  Burr.— It  the  remark  be  addressed  to  me,  sir,  I 
can  only  say,  that  I  shall  remain  passive.  Dr.  Wardlaw 
'.vas  then  dismissed. 

Mr.  Mac  Rae  also  moved  the  discharge  of  Mr.  Ran- 
dolph Harrison,  whose  extreme  indisposition  was  at- 
tested by* a  certificate  from  Dr.  Adams.  Mr.  Harrison 
was  accordingly  dismissed  in  the  same  manner. 

Mr.  Hay  moved  that  Herman  Blannerhasset  be 
arraigned  for  treason  ;  which, 

Mr.  Botts  opposed,  on  the  ground  that  he  had  not  been 
furnished  with  a  copy  of  the  indictment  three  days  pre- 
viously. After  some  desultory  conversation  on  this  cir- 
cumstance, 

Mr.  Botts  requested  that  Mr.  Blannerhasset  be  recon- 
veyed  to  the  penitentiary,  as  he  was  extremely  indis- 
posed, and  the  heat  nearly  overpowered  him.  No  op- 
position was  made,  and  Mr.  Blannerhasset  was  accordingly 
reconducted  to  his  prison. 

At  Mr.  Hay's  request,  the  panel  of  the  jury  was  called 
over  by  the  deputy  marshal,  and  also  at  Mr.  Burr's 
request,  the  list  of  the  witnesses  whom  he  had  sub- 
poenaed, for  the  purpose  of  investigating  the  qualifica- 
tions of  some  of  the  venire. 

Mr.  Hay  read  a  certificate  from  Dr.  Upshaw,  stating 
that  Mr.  James  Henderson  is  sick  of  a  bilious  fever,  and 
incapable  of  attending. 

Mr.  Mac  Rae  then  read  a  certificate  from  Dr.  Green- 
how,  showing  that  David  Bullock,  esq.,  one  of  the  venire 
was  prevented  by  indisposition  from  discharging  his 
duties.  Mr.  Bullock  was  accordingly  excused. 

The  clerk  informed  Mr.  Burr,  that  he  was  at  liberty  to 
challenge  such  of  the  venire  as  he  might  object  to. 

Mr.  Burr  begged  leave  to  inform  the  jurors  who  were 
within  hearing,  that  a  great  number  of  them  may  have 
formed  and  expressed  opinions  about  him,  which  might 
disqualify  them  from  serving  on  this  occasion.  He  ex- 
pected that  as  they  came  up,  they  would  discharge  the  du- 
ties of  conscientious  men,  and  candidly  answer  the  ques- 
tions put  to  them,  and  state  all  their  objections  against 


406  TRIAL   OF  AARON   BURR. 

The  deputy  marshal  then  summoned  first,  Hezekiah 
Bucky. 

Mr.  Botts. — We  challenge  you  for  cause.  Have  you 
ever  formed  and  expressed  an  opinion  about  the  guilt  of 
Mr.  Burr? 

Mr.  Bucky. — I  have  not,  sir,  since  I  have  been  sub- 
pcenaed. 

Question. — Had  you  before  ? 

Answer. — I  had  formed  one  before  in  my  own  mind. 

Mr.  Hay  wished  that  the  question  of  the  opposite 
counsel  could  assume  a  more  precise  and  definite  form. 
If  this  question  were  proposed  to  this  man,  and  to  every 
other  man  of-the  panel,  he  would  venture  to  predict  that 
there  could  not  be  a  jury  selected  in  the  state  of  Virginia  ; 
because  he  did  not  believe  that  there  was  a  single  man 
in  the  state,  qualified  to  become  a  juryman,  who  had  not, 
in  some  form  or  other,  made  up  and  declared  an  opinion 
on  the  conduct  of  the  prisoner.  The  transactions  in  the 
west  had  excited  universal  curiosity  ;  and  there  was  no 
man  who  had  not  seen  and  decided  on  the  documents 
relative  to  them.  Do  gentlemen  contend,  that  in  a 
case  so  peculiarly  interesting  to  all,  the  mere  declaration 
of  an  opinion  is  sufficient  to  disqualify  a  juryman  ?  A 
doctrine  of  this  sort,  would  at  once  acquit  the  prisoner  ; 
for  where  is  the  jury  that  could  try  him?  Such  a  doc- 
trine amounts  to  this :  that  a  man  need  only  to  do 
enough  to  draw  down  the  public  attention  upon  him,  and 
he  would  immediately  effect  his  discharge.  Mr.  Hay 
concluded  with  a  hope,  that  the  question  would  assume 
a  more  definitive  form  ;  he  should  not  pretend  to  decide 
the  form  in  which  it  should  be  proposed,  for  that  was  the 
province  of  the  court  ;  it  was  a  privilege  to  which  every 
court  is  entitled  ;  and  one  which  the  court  had  exercised 
in  the  case  of  James  T.  Callender. 

Mr.  Botts  considered  it  as  a  misfortune  ever  to  be  de- 
plored, that  in  this  country,  and  in  this  case,  there  had 
been  too  general  an  expression  of  the  public  sentiment, 
and  that  this  generality  of  opinion  would  disqualify 
many  ;  but  he  had  never  entertained  a  doubt,  until  the 
gentleman  for  the  prosecution  had  avowed  it,  that  twelve 
men  might  be  found  in  Virginia,  capable  of  deciding  this 
question  with  the  strictest  impartiality.  He  still  trusted 


IMPANELING     THE    JURY.  407 

that  the  attorney  for  the  United  States  was  mistaken  ; 
that  the  catastrophe  was  not  completely  fixed :  and  that 
every  man  in  the  state  had  not  pledged  himself  to  con- 
vict Mr.  Burr,  whether  right  or  wrong.  He  was  not 
present  at  the  trial  of  James  T.  Callender ;  but  all 
America  had  heard  the  question  which  was  then  pro- 
pounded to  the  jurymen  ;  and  that  was,  whether  they  had 
made  up  and  expressed  an  opinion  respecting  the  guilt 
of  the  prisoner. 

Mr.  Hay  said  that  he  would  put  Mr.  Botts  right  as  to 
matter  of  fact.  The  court  would  recollect  that  on  the 
trial  of  Callender,  the  question  was,  not  whether  the 
jurymen  had  formed  and  expressed  an  opinion  on  that 
case  generally,  but  on  the  subject-matter  that  was  to  be 
tried,  and  contained  in  the  indictment.  The  question, 
then,  in  the  present  case  should  be,  "  Have  you  formed 
and  expressed  an  opinion  on  the  point  at  issue — that  is, 
whether  Aaron  Burr  be  guilty  of  treason  ?"  On  the  trial 
of  Callender,  the  court  would  particularly  recollect,  that 
Mr.  John  Basset  having  objected  to  himself,  because  he 
had  read  the  libelous  publication,  was  actually  over- 
ruled, because  it  was  not  on  the  book  itself,  but  on  the 
subject-matter  of  the  indictment,  that  he  was  called  upon 
to  say,  whether  he  had  ever  expressed  an  opinion. 

Mr.  Burr  declared  that  there  was  a  material  distinction 
between  that  and  the  present  case.  Mr.  Basset's 
acknowledging  that  he  had  seen  the  book  did  not  dis- 
qualify him  from  serving  on  the  jury  ;  in  the  same  man- 
ner, the  person  who  had  seen  a  murder  committed,  would 
not  be  an  incompetent  juror  in  the  prosecution  for  that 
crime.  But  if  a  man  pretended  to  decide  upon  the  guilt 
of  a  prisoner,  upon  mere  rumor,  he  would  manifest  such 
a  levity  and  bias  of  mind,  as  would  effectually  disqualify 
him.  Mr.  Bucky,  however,  has  not  yet  come  out  com- 
pletely with  his  declarations.  Let  him  be  further  interro- 
gated. 

Mr.  Hay  observed  that  the  question  would  still  be  too 
general  and  vague,  if  it  were  even  to  be,  "  Have  you  ex- 
pressed any  opinion  on  the  treason  of  Aaron  Burr?"  for 
the  case  stated  in  the  indictment  was  infinitely  more 
specific.  It  was  treason  in  levying  war  against  the  United 
States  at  Blannerhasset's  island.  Unless  this  particulai 


4o8  TRIAL   OF  AARON   BURR. 

allegation  be  proved,  it  defeats  all  the  other  parts  of  the 
accusation  ;  and  it  was  probably  on  this  point  that  the 
juror  had  never  made  up  any  opinion. 

Mr.  Martin  contended  that  it  was  the  duty  of  every 
juryman  to  come  to  the  trial  of  any  case  with  the  most 
perfect  impartiality  ;  and  more  particularly  one  where 
life  and  reputation  were  at  stake  ;  that  it  was  a  libel  upon 
Virginia,  a  blot  upon  the  whole  state,  to  assert  that 
twelve  men  could  not  be  found  to  decide  such  a  case, 
with  no  other  knowledge  than  what  they  had  picked  up 
from  newspapers  :  that  there  was  a  material  distinction 
between  this  and  Callender's  case  ;  the  libel  was  a  book 
in  every  man's  hand  ;  but  does  any  juryman  in  the  pres- 
ent case  pretend  to  know  the  testimony  on  which  this 
charge  depends?  The  gentleman  proposes  to  ask  the 
juryman,  whether  he  have  made  up  an  opinion  on  Mr. 
Burr's  treason  ?  But  it  is  extremely  probable  that  most 
of  them  know  not  what  treason  is,  and  though  they  may 
decide  upon  the  guilt  of  Mr.  Burr,  they  may  be  ignorant 
whether  it  come  under  the  name  and  description  of 
treason. 

Mr.  Botts  quoted  authorities  in  support  of  his  opinion, 
but  they  are  not  all  inserted  here,  because  the  same  ques- 
tion was  afterwards  very  fully  argued,  and  many  author- 
ities cited.  The  trials  of  Smith  and  Ogden  in  New  York, 
and  the  opinion  of  Judge  Iredel,  on  the  trial  of  John 
Fries,  in  Pennsylvania,  were  particularly  referred  to. 

The  Chief  Justice  observed,  that  it  might  save  some 
altercation,  if  the  court  were  to  deliver  its  opinion  at  the 
present  time  ;  that  it  was  certainly  one  of  the  clearest 
principles  of  natural  justice,  that  a  juryman  should  come 
to  a  trial  of  a  man  for  life,  with  a  perfect  freedom  from 
previous  impressions  ;  that  it  was  clearly  the  duty  of  the 
court  to  obtain,  if  possible,  men  free  from  such  bias  ;  but 
that  if  it  were  not  possible,  from  the  very  circumstances 
of  the  case, —  if  rumors  had  reached  and  prepossessed 
their  judgments, — still  the  court  was  bound  to  obtain  as 
large  a  portion  of  impartiality  as  possible  ;  that  this  was 
not  more  a  principle  of  natural  justice,  than  a  maxim  of 
the  common  law,  which  we  have  inherited  from  our  fore- 
fathers;  that  the  same  right  was  secured  by  the  consti- 
tution of  the  United  States,  which  entitles  every  man 


IMPANELING     THE    JURY.  409 

under  a  criminal  prosecution,  to  a  fair  trial  by  "  an  im- 
partial jury."  Can  it  be  said,  however,  that  any  man  is 
an  impartial  juryman,  who  has  declared  the  prisoner  to 
be  guilty  and  to  have  deserved  punishment?  If  it  be 
said  that  he  has  made  up  this  opinion,  but  has  not  heard 
the  testimony,  such  an  excuse  only  makes  the  case 
worse,  for  if  the  man  have  decided  upon  insufficient  tes- 
timony, it  manifests  a  bias  that  completely  disqualifies 
himself  from  the  functions  of  a  juryman.  It  is  too  gen- 
eral a  question,  to  ask  whether  he  have  any  impressions 
about  Mr.  Burr.  The  impressions  may  be  so  light,  that 
they  do  not  amount  to  an  opinion  of  guilt ;  nor  do  they 
go  to  the  extent  of  believing,  that  the  prisoner  deserves 
capital  punishment.  With  respect  to  Mr.  Basset's  opin- 
ion, it  was  true  he  had  read  "  The  Prospect  before  Us;  " 
and  he  had  declared  that  is  was  libel ;  but  Mr.  Basset 
had  formed  no  opinion  about  James  T.  Callender's  being 
the  author.  It  was  the  same  principle  in  the  present 
case.  If  a  juryman  were  to  declare  that  the  attempt  to 
achieve  the  dismemberment  of  the  union  was  treason,  it 
would  not  be  a  complete  objection  or  disqualification  ; 
but  it  would  be  the  application  of  that  crime  to  a  partic- 
ular individual  ;  it  would  be  the  fixing  it  on  Aaron  Burr 
that  would  disable  him  from  serving  in  this  case,  Let 
the  counsel,  then,  proceed  with  the  inquiry. 

Mr.  Botts. — Have  you  said  that  Mr.  Burr  was  guilty  of 
treason  ? 

Mr.  Bucky. — No.  I  only  declare.d  that  the  man  who 
acted  as  Mr.  Burr  was  said  to  have  done,  deserved  to  be 
hung. 

Question. — Did  you  believe  that  Mr.  Burr  was  that 
man  ? 

Answer. — I  did,  from  what  I  had  heard. 

Mr.  Hay. — I  understand,  then,  that  the  question  pro- 
posed in  Callender's  case  is  to  be  overruled  ? 

Chief  Justice. — My  brother  judge  does  not  recollect 
whether  it  particularly  went  to  the  indictment  or  not. 

Judge  Griffin. — I  think  the  question  was,  "relative  to 
the  matter  in  issue." 

Mr.  Hay. — The  very  position  that  I  have  laid  down. 

Chief  Justice. — The  simple  question  is,  whether  the 
having  formed  an  opinion,  not  upon  the  evidence  ia 


410  TRIAL   OF  AARON  BURR. 

court,  but  upon  common  rumor,  render  a  man  incompe- 
tent to  decide  upon  the  real  testimony  of  the  case? 

Mr.  Wirt  (addressing  Mr.  Bucky ). — Did  I  understand 
you  to  say  that  you  concluded  upon  certain  rumors  you 
had  heard,  that  Mr.  Burr  deserved  to  be  hung? 

Mr.  Bucky.— \  did. 

Question. — Did  you  believe  these  rumors?  Answer. — I 
did. 

Question. — Would  you,  if  you  were  a  juryman,  form 
your  opinion  upon  upon  such  rumors?  Answer. — Cer- 
tainly not. 

Mr.  Mac  Rae. — Did  you  form  and  express  your  opinion 
upon  the  question  whether  an  overt  act  of  treason  had 
been  committed  at  Blannerhassett's  island? 

Answer. — It  was  upon  other  rumors,  and  not  upon  that, 
that  I  had  formed  an  opinion. 

Mr.  Martin  submitted  it  to  the  court,  whether  he  could 
be  considered  an  impartial  juryman. 

The  court  decided  that  he  ought  not  to  be  so  consid- 
ered, and  he  was  accordingly  rejected. 

James  G.  Laidly  stated  that  he  had  formed  and  ex- 
pressed some  opinions  unfavorable  to  Mr.  Burr,  that  he 
could  not  pretend  to  decide  upon  the  charges  in  the 
indictment,  which  he  had  not  heard  ;  that  he  had  princi- 
pally taken  his  opinions  from  newspaper  statements;  and 
that  he  had  not,  as  far  as  he  recollected,  expressed  an 
opinion  that  Mr.  Burr  deserved  hanging;  but  that  his 
impression  was  that  he  was  guilty.  He  was  therefore  set 
aside. 

James  Compton  being  challenged  for  cause  and  sworn, 
stated  that  he  had  formed  and  expressed  an  opinion  from 
hearsay,  that  Mr.  Burr  was  guilty  of  treason,  and  of  that 
particular  treason  of  which  he  stood  charged,  as  far  as  he 
understood.  He  was  rejected. 

Mr.  Burr  observed  that  as  gentlemen  on  the  part  of  the 
prosecution  had  expressed  a  willingness  to  have  an  im- 
partial jury,  they  could  not  refuse  that  any  juryman 
should  state  all  his  objections  to  himself ;  and  that  he  had 
no  doubt,  in  spite  of  the  contrary  assertions  which  had 
been  made,  that  they  could  get  a  jury  from  this  panel. 

Hamilton  Morrison  upon  being  called,  said  that  he 
had  frequently  thought  and  declared  that  Mr.  Burr  was 


IMPANELING     THE    JURY.  411 

guilty,  if  the  statements  which  he  had 'heard  were  true; 
that  he  did  not  know  whether  they  were  so  ;  but  only 
thought  from  the  great  clamor  which  had  been  made  that 
it  might  be  possible  that  they  were  true;  that  he  had 
not  passed  any  positive  opinion ;  nor  was  he  certain 
that  he  had  always  qualified  it  by  saying,  "  if  these  things 
were  true;  "  that'he  does  not  recollect  to  have  said  that 
Mr.  Burr  ought  to  be  punished,  without  stating  at  the 
same  time,  "  if  he  were  guilty."  Mr.  Morrison  was  sus- 
pended for  further  examination. 

Yates  S.  Conwell  had  formed  and  expressed  an  opinion 
from  the  reports  he  had  heard,  that  Mr.  Burr  must  be 
guilty  of  high  treason.  He  was  accordingly  set  aside. 

Jacob  Beeson  declared  that  he  had  for  some  time  past 
formed  an  opinion,  as  well  from  newspaper  publications 
as  from  the  boats  which  had  been  built  on  the  Ohio,  that 
Mr.  Burr  was  guilty  ;  and  that  he  himself  had  borne  arms 
to  suppress  this  insurrection.  He  was  therefore  set  aside 
as  incompetent. 

William  Prince  declared,  he  had  nearly  the  same 
impressions  as  Mr.  Beeson;  that  he  too  had  borne  arms; 
as  well  on  Blannerhasset's  island,  as  on  descending  the 
river,  in  search  of  Blannerhasset.  He  was  set  aside  in 
like  manner. 

Nimrod  Saunders  declared  that  he  had  expressed  an 
opinion  previously  to  his  being  summoned  on  the  jury, 
that  the  prisoner  had  been  guilty  of  treason.  He  was 
therefore  set  aside  as  incompetent. 

Thomas  Creel  had  no  declaration  to  make,  and  was 
challenged  for  cause.  Upon  being  interrogated,  he  stated 
that  he  had  never  asserted  that  the  prisoner  ought  to  be 
punished;  that  he  had  said  that  he  was  a  sensibleman  ; 
and  if  there  were  any  hole  left,  he  would  creep  out  of  it ; 
that  he  had  conceived  that  Mr.  Burr  had  seduced  Blan- 
ner'hassett  into  some  acts  that  were  not  right ;  that  he 
had  never  positively  said  that  Mr.  Burr  was  guilty;  that 
he  had  said  that  Blannerhasset  was  the  most  blamable, 
because  he  was  in  good  circumstances,  and  well  off  in 
life;  whereas  Mr.  Burr's  situation  was  desperate,  and  that 
he  had  little  to  lose  ;  that  he  had  not  said  that  Mr.  Burr 
had  directly  misled  Mr.  Blannerhasset,  but  through  the 
medium  of  Mrs.  Blannerhasset  ;  in  short,  that  there 


4i2  TRIAL   OF  A  A  ROW  BURR. 

was  no  determinate  impression  on  his  mind  respecting  the 
guilt  of  the  prisoner. 

The  Chief  Justice  did  not  think  that  this  was  sufficient 
to  set  him  aside,  and  suspended  his  case  for  further 
examination. 

Anthony  Buckner  had  frequently  said  that  the  prisoner 
deserved  to  be  hanged.  He  was  therefore  set  aside. 

David  Creel  had  formed  an  opinion  from  the  state- 
ments in  the  newspapers,  and  if  these  were  true,  the 
prisoner  was  certainly  guilty.  He  had  expressed  a 
belief  that  he  was  guilty  of  the  charges  now  brought 
against  him,  and  that  he  ought  to  be  hanged.  He  was 
therefore  rejected. 

Jurors  from  the  body  of  the  district. 

John  Horace  Upshaw  declared  that  he  conceived  him- 
self to  stand  there  as  an  unprejudiced  juryman,  for  he 
was  ready  to  attend  to  the  evidence  ;  but  that  as  he  had 
formed  opinions  hostile  to  the  prisoner  (if  opinions  they 
can  be.  called  which  are  formed  from  newspaper  testi- 
mony), and  had,  he  believed,  frequently  expressed  them  ; 
that  he  was  unwilling  to  subject  himself  to  the  imputa- 
tion of  having  prejudged  the  cause. 

Mr.  Burr. — We  challenge  Mr.  Upshaw  for  cause. 

Mr.  Hay. — Then,  sir,  I  most  seriously  apprehend  that 
we  shall  have  no  jury  at  all.  I  solemnly  believe  Mr.  Up 
shaw  is  an  intelligent  and  upright  man,  and  can  give  a 
correct  verdict  on  the  evidence;  and  I  will  venture  to 
assert  (whatever  credit  my  friends  on  the  other  side  will 
allow  to  my  assertion),  that  I  myself  could  do  justice  to 
the  accused  ;  I  believe  that  any  man  can,  who  is  blessed 
with  a  sound  judgment  and  integrity.  We  might  as 
well  enter  at  once  a  nolle  prosequi,  if  he  is  to  be  rejected. 

Mr.  Wickham. — Then  according  to  the  gentleman's 
doctrine  any  honest  man,  no  matter  what  his  impressions 
may  be,  is  a  competent  juryman.  Is  this  agreeable  to 
the  principles  of  law  ?  Does  the  gentleman  mean  to 
insinuate  that  when  we  object  to  a  juryman,  it  is  for  his 
want  of  honesty  ?  No,  sir,  every  man  is  subject  to  par- 
tialities and  aversions,  which  may  conscientiously  sway 
his  judgment.  Mr.  Upshaw  does  no  doubt  deem  him- 


IMPANELING    THE  JURY.  413 

self  an  impartial  juryman  ;  but  Mr.  Upshaw  may  be 
deceived. 

After  some  desultory  argument  between  Messrs.  Hay 
and  Wickham,  Mr.  Wirt  proceeded  to  ask  Mr.  Upshaw 
whether  he  had  understood  him  to  say  that  notwith- 
standing the  hostile  impressions  he  had  taken  up  from 
newspaper  reports,  these  impressions  had  not  received 
that  determinate  character  which  might  entitle  them  to 
the  name  of  opinions. 

Ansiuer. — I  have  received  impressions  hostile  to  Mr. 
Burr,  and  have  expressed  them  with  some  warmth  ;  but 
my  impressions  have  not  been  induced  by  anything  like 
evidence.  They  were  predicated  on  the  deposition  of 
General  Eaton  and  the  communications  of  General  Wil- 
kinson to  the  president  of  the  United  States.  I  had 
conceived  that  the  prisoner  had  been  guilty  of  some 
criminal  act  against  the  public,  and  ought  to  be  pun- 
ished, and  I  believe  also  that  I  went  on  further  to  vin- 
dicate the  conduct  of  those  gentlemen  who  would  appear 
as  the  principal  witnesses  against  him  ;  and  also  of  the 
government  in  the. measures  which  it  had  taken  to  sup- 
press his  plans. — After  some  further  and  animated  discus- 
sion on  this  point,  Mr.  Upshaw's  case  was  suspended  for 
subsequent  examination. 

William  Pope  declared  that  his  impressions  were 
nearly  the  same  with  those  of  the  gentlemen  who  had 
preceded  him  :  that  he  had  thought  at  first,  from  news- 
paper representations,  that  it  was  Mr.  Burr's  intention  to 
make  his  fortune  in  the  west  by  the  settlement  of  lands  ; 
that  when  he  had  afterwards  understood  that  he  had 
formed  a  union  with  Wilkinson  to  proceed  to  Mexico  he 
had  regarded  the  prisoner's  conduct  in  such  a  light,  that  if 
he  had  proceeded  to  Mexico  he  would  have  considered  it 
as  an  excusable  offense,  but  when  he  had  afterwards  un- 
derstood that  there  was  treason  mixed  with  his  projects 
it  was  impossible  for  him  to  view  his  conduct  without  the 
deepest  indignation;  if  these  impressions  could  be  called 
prejudices,  he  trusted  that  he  should  always  retain  them  ; 
what  other  sentiments  could  he  feel  against  such  a  crime 
perpetrated  against  the  very  best  government  on  the  sur- 
face of  the  earth  ?  But  Mr.  Pope  declared  that  from  his 
heart  he  believed  that  he  could  divert  himself  of  these 


414  TRIAL    OF  AARON   BURR. 

unfavorable  impressions,  and  give  Mr.  Burr  a  fair  and 
nonorable  trial.  He  would  add,  that  in  pursuance  of  the 
spirit  manifested  by  the  constitution  which  required  two 
witnesses  to  an  overt  act  of  treason,  he  should  think  it 
necessary  that  the  evidence  for  the  United  States  should 
be  so  strong  as  to  make  the  scale  preponderate. 

Mr.  Wickham. — You  will  not  misunderstand  me,  Mr. 
Pope,  when  I  ask  you  whether  you  have  not  been  a  can- 
didate for  your  county,  and  whether  you  be  not  now  a 
delegate  ? 

A  nswer. — Yes. 

Question. — In  canvassing  among  the  people,  have  you 
not  declared,  that  the  government  had  acted  properly  in 
commencing  this  prosecution? 

Answer. — Yes;  I  believe  I  have  said,  generally,  that  I 
thought  Mr.  Burr  was  guilty  of  high  treason. — Mr.  Pope 
was  therefore  set  aside. 

Peyton  Randolph  declared,  that  it  had  never  been  his 
wish  or  intention  to  shrink  from  the  discharge  of  a  public 
duty  ;  but  that  he  had  peculiar  objections  to  serve  on 
this  occasion  ;  one  of  which  only,  he  should  state.  He 
had  been  enrolled  and  was  qualified  as  a  lawyer  in  this 
court ;  and  he  would  submit  it  to  the  court,  whetherlhis 
did  not  exempt,  if  not  disqualify,  him  from  serving  ? 

Chief  Justice  admitted  Mr.  Randolph's  privilege,  un- 
less there  were  an  express  interposition  on  the  part  of 
the  prisoner,  to  retain  him  and  others  of  the  venire  who 
had  privileges :  for  this  would  call  a  conflicting  privilege 
into  operation. 

Mr.  Burr  said  that  he  should  be  passive. 

John  Bowe  did  not  recollect  to  have  said,  that  the 
prisoner  was  guilty  of  treason,  but  of  something  hostile 
to  the  peace  and  happiness  of  the  United  States.  Upon 
being  interrogated  he  observed  that  he  was  a  delegate 
from  the  county  of  Hanover ;  that  there  had  been  a 
competition  at  the  last  election  ;  that  he  had  had  occa- 
sion to  speak  at  that  time  of  the  views  of  the  prisoner, 
but  had  always  done  it  cautiously  ;  had  never  asserted 
that  he  ought  to  be  hung,  but  that  he  was  guilty  of 
something  unfriendly  to  the  peace  of  the  United  States. 

Mr.  Wickham. — You  have  said  that  the  prisoner  was 
guilty  ?  • 


IMPANELING     THE     JURY.  415 

Answer. — Yes. 

Chief  Justice. — Did  you  ever  make  up  an  opinion 
about  his  levying  troops  and  making  war  against  the 
United  States, 

Answer. — Yes  :  but  I  have  never  expressed  it. 

Mr.  Burr. — Take  the  whole  together,  and  it  amounts 
to  an  opinion  of  treason.  Mr.  Bowe  has  said,  that  Mr. 
Burr  was  guilty  ;  and  of  what  ?  Of  that  which  in  Mr. 
Bovve's  mind  amounts  to  the  definition  of  treason.  He 
was  therefore  set  aside. 

John  Roberts  had  thought  and  declared,  from  the 
reports  in  the  public  newspapers,  that  the  prisoner  was 
guilty  of  treason,  though  he  had  no  doubt  that  his  opin- 
ion might  be  changed  by  the  production  of  other  testi- 
mony. He  was  set  aside  as  incompetent. 

Joshua  Chaffin  excused  from  indisposition. 

7.  Jervis  Storrs  observed  that  the  state  of  his  mind 
was  like  that  of  the  gentleman  who  had  gone  before  him 
(Mr.  Bowe) ;  he  was  in  the  habit  of  reading  newspapers, 
and  could  not  but  examine  their  statements  relative  to 
these  transactions.     If  he  could  believe  General  Eaton's 
assertion  that  the  prisoner  had  threatened  to  turn  con- 
gress out  of  doors  and  assassinate  the  president,  he  had 
said,  and   would  still   say,  that  Mr.  Burr  was   guilty  of 
treason.     If  General  Wilkinson's  letter  were  true,  he  had 
surely  been  guilty  of  something   in  the   west   that  was 
hostile  to  the  interest  of  the  United  States.     He  did  not 
know  whether,  in  the*  multifarious  conversations  he  had 
had  on  this  subject,  he  had  always  expressed  this  opinion 
of  his  guilt  with  that  reservation.     He   had   very  often 
communicated  his  impressions  that  he  was  plotting  some 
hostile  designs  against   the   United    States.     Mr.  Storrs 
confessed  that  he  might  be  prejudiced  against  the  pris- 
oner ;    and  that  he  might  be  judging  too   highly  of  his 
own  mind,  to  entertain  the  belief  that   he  could  divest 
himself  of  all  his  impressions;    and  upon  the  whole,  he 
expressed  a  wish  not  to  serve.     He  was  then  rejected. 

8.  Miles  Selden  declared  that  it  was  impossible  not  to 
have  entered  into  the  frequent  conversations  which  had 
occurred  on  this  topic,  and  to  have  declared  some  opin- 
ion ;  that  he  had  always  said  that  Mr.  Burr  was  guilty  of 
something,  and  that  if  he  were  guilty  of  treason  against 


4i6  TRIAL    OF  AARON  BURR. 

such  a  government  as  that  of  the  United  States,  he  would 
deserve  to  be  hanged ;  that  he  could  not  assert  that 
he  had  always  accompanied  his  opinions  with  this  reser- 
vation ;  but  that  he  was  not  afraid  to  trust  himself  in  the 
rendering  of  a  verdict. 

Upon  being  interrogated,  he  said  that  he  had  fre- 
quently jested  on  this  subject ;  and  particularly  recol- 
lected to  have  said  in  a  sportive  conversation  with  Colonel 
Mayo,  that  this  was  a  federal  plot  and  that  Burr  had 
been  set  on  by  the  federalists.  Colonel  Selden  was  there- 
fore suspended  for  further  consideration. 

9.  Lewis  Truehart  had  said  that  if  the  reports  were 
correct,  Mr.  Burr  had  been  guilty  of  something  inimical 
to  the  country,  and  that  he  always  qualified  his  opinions 
in  that  manner. 

Colonel  Tinsley  was  then  called  in  as  a  witness,  who 
stated,  that  from  a  conversation  with  Mr.  Truehart,  he 
thought  that  he  had  discovered  that  he  had  a  general  pre- 
possession against  Mr.  Burr.  He  did  not  expect  to  be  called 
on,  and  had  no  very  distinct  recollection  of  the  partic- 
ulars ;  that  this  was  before  any  of  the  proceedings  of  the 
trial  :  and  when  he  heard  that  he  was  summoned  as  one  of 
the  venire,  he  then  recollected  their  conversation  and  hap- 
pened casually  to  mention  it.  Mr.  Truehart  suspended. 

William  Yancey  had  expressed  an  opinion  on  news- 
paper testimony  that  Mr.  Burr  was  guilty;  that  he  had 
frequently  said  that  he  would  believe  the  statements  of 
newspapers  till  the  contrary  were  proved  :  but  that  he 
had  no  doubt  he  should  entertain  a  different  sentiment, 
if  other  testimony  were  produced  He  was  set  aside. 

Thomas  Prosser  was  next  called.  He  said  that  he  had 
made  numberless  declarations  about  Mr.  Burr  ;  that  he 
had  believed  him  to  be  guilty  of  a  treasonable  intention, 
but  not  of  the  overt  act ;  on  this  point  he  had  suspended 
his  opinion,  but  he  was  rather  inclined  to  believe  that  he 
had  not  committed  it. 

Mr.  Martin. — Can  this  gentleman  be  considered  as  an 
impartial  juryman,  v  hen  he  thus  comes  with  his  mind, 
made  up  on  one-half  of  the  guilt  ?  He-was  suspended  for 
further  consideration. 

John  Staples  had  been  under  the  same  impressions, 
which  had  been  described  by  others ;  that  he  dared  to 


IMPANELING     THE    JURY.  417 

say,  that  he  had  said  Mr.  Burr  was  guilty  of  levying 
troops  and  making  war  upon  the  United  States.  He 
was  set  aside. 

Edward  C.  Stanard  acknowledged  that  his  prejudices 
against  Mr.  Burr  had  been  deep-rooted  ;  that  he  had  no 
doubt  of  the  criminality  of  his  motives,  but  that  he  had 
doubts  of  the  commission  of  an  overt  act ;  he  regretted 
that  a  man  of  his  talents  and  energetic  mind,  should  be 
lost  to  his  country.  Upon  being  interrogated  he  ob- 
served that  he  had  doubts  as  to  the  overt  act,  because 
he  believed  him  to  be  a  man  of  such  deep  intrigue  as 
never  to  jeopardize  his  own  life,  till  thousands  fell  before 
him.  He  was  rejected. 

Richard  B.  Goode  was  then  called. 

I  have  never  seen,  neither  do  I  believe,  that  I  have 
heard  correctly,  the  evidence  in  this  prosecution.  From 
common  report  and  newspaper  information  I  have  formed 
an  opinion  unfavorable  to  Mr.  Burr:  that  opinion  has 
been  strengthened  by  what  I  have  heard  from  the  lips  of 
Mr.  Burr  in  this  court  ;  but  without  arrogating  to  myself 
more  virtue  than  belongs  to  other  men,  if  I  know  myself, 
I  have  formed  no  opinion  which  can  not  be  altered  by  the 
evidence. 

Mr.  Baker. — Did  you  not  endeavor  to  displace  Mr. 
Heth  as  captain  of  the  Manchester  cavalry,  for  becoming 
the  bail  of  Mr.  Burr. 

Answer. — I  never  did.  (Here  several  witnesses  were 
directed  to  be  called.) 

Mr.  Goode. — I  will  state  the  circumstance  to  which  you 
allude,  unless  you  prefer  to  prove  it. 

The  Court. — Do  so,  if  you  please. 

Mr.  Goode. — On  the  4th  of  July,  1806,  I  was  a  mem- 
ber of  a  committee  with  Captain  Heth,  appointed  to  pre- 
pare toasts  to  be  drunk  on  that  day  by  the  Manchester 
cavalry.  I  profess  to  be  attached  to  the  present  admin- 
istration of  the  general  government,  and  wished  to  ex- 
press such  a  sentiment.  Captain  Heth  declared  that  he 
had  not  confidence  in  the  executive,  and  rather  than  ex- 
press such  a  sentiment  he  would  resign  his  commission. 
At  that  time,  I  thought  Captain  Heth  and  myself  differed 
only  as  to  measures,  and  not  as  to  principles;  and  that  it 
was  an  honest  opinion.  But  in  a  few  months  after,  when 

27 


4i 8  TRIAL   OF  AARON   BURR. 

I  understood  that  Captain  Heth  had  become  bail  for  Mr. 
Burr,  and  was  his  zealous  friend,  with  whom  he  was 
neither  connected  nor  acquainted,  but  a  stranger,  who, 
three  years  ago,  would  have  been  consigned  to  the  grave 
by  Captain  Heth,  and  those  thinking  with  him  upon 
political  subjects ;  and  when  I  recollected  the  charge 
preferred  against  Mr  Burr,  I  confess  that  the  declaration 
and  conduct  of  Captain  Heth  made  such  impressions 
upon  my  mind,  that  I  refused  to  trust  my  person  with 
him  as  a  military  commander,  and  I  would  do  it  again. 

Mr.  Burr. — Pray,  sir,  did  you  not  write  a  letter  to  Cap- 
tain Heth  ? 

Answer. — I  did ;  and  I  have  reasons  to  believe  that 
that  letter  is  in  your  possession  or  in  the  possession  of 
your  counsel.  You  are  at  liberty  to  show  it  to  the  court, 
or  I  will  repeat  that  part  of  it  which  relates  to  Captain 
Heth  and  yourself. 

The  Court. — Do  so,  sir. 

Mr.  Goods. — A  few  weeks  past,  I  received  a  letter  from 
Captain  Heth,  commanding  me  to  appear  at  a  certain  time 
and  place,  in  order  to  take  my  proper  command  in  the 
troop.  I  wrote  him  in  answer,  that  my  post  as  a  soldier 
would  never  be  abandoned,  and  that  my  duty  as  a  citizen 
forbade  that  I  should  silently  approve  of  the  conduct  of 
those  who  had  extended  a  favor  to  a  traitor,  which  the 
justice  of  my  country  denied  to  an  unfortunate  debtor, 
or  words  to  that  effect. 

Mr.  Goode  was  then  rejected. 

Nathaniel  Selden  stated  he  had  formed  an  opinion, 
particularly  from  General  Eaton's  deposition  that  the 
intentions  of  the  prisoner  were  hostile  to  the  United 
States ;  but  that  he  had  also  said  he  had  seen  no'evi- 
dence  to  satisfy  him  that  he  had  been  guilty  of  an  overt 
act.  He  was  suspended  for  further  consideration. 

16.  Esme  Smock  declared  that  he  had  formed  and  ex- 
pressed an  opinion  that  Mr.  Burr  had  treasonable  de- 
signs. 

Chief  Justice. — To  what  time  did  your  opinion  relate  ? 

Mr.  Smock. — I  have  formed  my  opinion  from  news- 
paper publications  and  common  report ;  but  I  have  con- 
stantly conceived  that  Mr.  Burr's  intentions  were  trea- 
sonable throughout. 


IMPANELING    THE    JURY.  419 

Mr.  Wickham. — Have  you  ever  formed  an  opinion 
that  Mr.  Burr  was  guilty  of  treason  ? 

Answer. — I  have  in  my  own  mind. — He  was  set  aside. 

Richard  E.  Parker  said  that  he  had,  like  every  other 
person,  formed  an  opinion  on  that  case,  on  newspaper 
statements  ;  but  he  had  heard  very  little  of  the  evidence 
that  may  be  adduced  on  this  occasion.  He  had  declared 
that  if  these  newspaper  statements  were  true,  Mr.  Burr 
had  been  guilty  of  some  design  contrary  to  the  interest 
and  laws  of  the  United  States.  As  to  the  doctrine  of 
treason,  he  had  not  formed  a  conclusive  opinion. 

Mr.  Burr. — I  have  no  objection  to  Mr.  Parker. 

He  was  therefore  elected. 

A  desultory  argument  here  ensued,  about  the  propriety 
of  swearing  one  juryman  at  a  time.  The  counsel  for  the 
prosecution  opposed,  the  counsel  for  the  prisoner  advo- 
cated the  doctrine.  The  court  decided  that  it  would 
adhere  to  the  practice  of  Virginia;  and  swear  four  jury- 
men at  a  time. 

•  John  W.  Ellis  said  that  he  had  no  doubt  that  the  pris- 
oner had  been  guilty  of'  having  treasonable  designs ; 
whether  he  had  proceeded  to  acts,  he  had  doubt.  He 
was  suspended. 

Thomas  Starke,  without  any  expectations  of  being  sum- 
moned as  a  juryman,  had  stated  his  opinion  to  his  neigh- 
bors, who  had  asked  him  questions  on  the  subject,  that 
Mr.  Burr  had  been  guilty  of  high  treason.  He  was  set 
aside. 

William  White  stated  that  he  had  been  in  the  Western 
country,  in  May  last ;  and  from  Mr.  Burr's  character  and 
from  the  representations  he  had  received  of  his  conduct, 
he  had  been  induced  to  say  that  he  was  guilty  of  trea- 
son, and  that  he  ought  to  be  hanged,  or  that  hanging  was 
too  good  for  him.  He  was  set  aside. 

William  B.  Chamberlaine  stated  that  he  stood  in  a  very 
peculiar  situation  ;  if,  as  Mr.  Wickham  declared,  any  man 
were  unfit  to  be  a  juryman  who  had  asserted  Mr.  Burr  to 
have  been  worthy  of  death,  he  was  ready  to  confess  that 
he  himself  came  under  this  restriction.  He  had  said 
uniformly,  that  he  had  treasonable  designs  ;  but  he  did 
not  now  believe  that  Mr.  Burr  had  committed  an  overt 
act  of  treason  ;  though  he  believed  him  to  be  guilty  of 


420  TRIAL     OF    AARON    BURR. 

the  intention.  He  however  believed  that  he  could  do 
him  justice  ;  and  that  he  could  conscientiously  pass  be- 
tween him  and  his  country.  He  was  rejected. 

David  Lambert  wished  to  be  excused  on  account  of 
his  indisposition  ;  but  the  court  rejected  his  plea.  On 
being  interrogated,  he  declared  that  he  did  not  recollect 
to  have  formed  an  opinion,  for  or  against  Mr.  Burr.  He 
was  elected. 

William  Hoomes  had  no  hesitation  in  saying,  that  he 
had  often  declared  his  opinion  that  Mr.  Burr  was  guilty 
of  treasonable  intentions,  and  perhaps,  he  might  say,  of 
treason  itself.  He  had  imbibed  his  impressions  from 
everything  he  had  seen,  heard,  or  read.  He  had  under- 
stood that  Mr.  Burr's  counsel  had  made  preparations  to 
prove  that  he  had  disqualified  himself  by  his  own  dec- 
larations. He  should  thank  them  to  develop  their  objec- 
tions. 

Mr.  Burr. — I  assure  you,  sir,  no  such  preparation  has 
been  made.  He  was  set  aside. 

24.  Overton  Anderson  said  that  he  had  often  expressed 
an  opinion  that  Mr.  Burr's  views  were  inimical  to  the 
United  States  ;  these  opinions  he  had  principally  formed 
upon  newspaper  statements  ;  he  did  not  recollect  that  he 
had  ever  asserted  him  to  be  guilty  of  treason  ;  but  he 
had  sometimes  given  credit  to  the  representations,  which 
he  had  heard,  without  particularly  defining  the  degree  of 
guilt  in  which  they  might  involve  the  prisoner,  and 
thought  him  guilty  of  the  charge  against  him,  though  he 
would  not  say  it  was  treason.  He  was  rejected. 

Hugh  Mercer,  upon  being  called,  said,  that  it  was  his 
duty  to  state  that  an  opinion,  which  he  had  for  some 
time  past  entertained,  of  the  character  of  Mr.  Burr, 
was  unfriendly  to  a  strictly  impartial  inquiry  into  his 
case  ;  that  he  was  entirely  uninformed  as  to  the  testi- 
mony which  would  be  introduced,  and  that  he  cHd  not 
recollect  to  have  ever  expressed  a  positive  opinion,  either 
as  to  his  guilt  or  innocence.  He  was  elected. 

Jerman  Baker  had  entertained  opinions  unfavorable  to 
Aaron  Burr,  which  he  had  repeatedly  expressed.  He  had 
spoken  them  with  warmth,  for  it  was  his  nature  to  be 
warm.  He  had  no  doubt  that  the  prisoner  had  formed 
very  unfriendly  designs  against  the  United  States;  but 


IMPANELING    THE  JURY,  421 

from  his  ignorance  of  the  evidence,  he  could  not  venture 
to  say,  that  they  had  ripened  into  an  overt  act. 

Mr.  Burr. — What  opinion  have  you  formed  of  me? 

Answer. — A  very  bad  one;  which  I  have  expressed  of- 
ten when  called  upon  ;  and  often  when  not.  He  was  set 
aside. 

Edward  Carrington,  next  called,  said  that  he  had 
formed  an  unfavorable  opinion  of  the  views  of  Mr.  Burr; 
but  these  opinions  were  not  definitive.  Some  had  said 
that  Mr.  Burr's  object  was  to  invade  the  Spanish  territo- 
ries;  others  that  it  was  to  dismember  the  union  ;  his  own 
opinion  had  not  been  definitely  fixed.  There  was  another 
subject  connected  with  this  trial,  on  which  he  had  also 
expressed  his  opinions  ;  and  that  related  to  the  measures 
taken  at  New  Orleans.  His  own  opinion  had  been,  that 
it  was  impossible  for  any  one  at  this  remote  scene,  to 
determine  upon  the  state  of  affairs  in  that  city  ;  but  if 
General  Wilkinson  did  seriously  believe  what  he  said  had 
been  represented  to  him  as  the  views  of  Mr.  Burr,  that 
he  ought  to  consider  it  as  an  extreme  case,  and  take  ex- 
treme measures,  and  act  somewhat  in  the  manner  that 
General  Wilkinson  had  done.  This  has  been  the  state  of 
his  mind  for  twelve  months. 

Mr.  Burr. — Have  you,  colonel,  any  prejudice  of  a 
more  settled  kind  and  ancient  date  against  me? 

Colonel  Carrington. — None  at  all. 

Mr.  Burr. — He  is  elected. 

Mr.  Parker  said  that  perhaps  he  had  been  misunder- 
stood by  the  court  and  Mr.  Burr ;  perhaps  he  was  dis- 
qualified, and  he  wished  to  be  distinctly  understood. 
He  said  that  he  had  expressed  no  deliberate  opinion  on 
the  subject,  yet  he  had  believed  that  Mr.  Burr  had  some 
designs  contrary  to  the  interest  of  the  United  States  ; 
that  he  had  formed  no  opinion  of  the  truth  of  those  dep- 
ositions, but  if  they  were  true,  his  designs  were  treasona- 
ble. Mr.  Parker  was  returned  as  a  juror. 

The  four  jurymen  that  had  been  elected,  were  then  called 
to  the  book,  and  sworn,  viz.  Messrs.  Parker,  Lambert, 
Mercer,  and  Carrington. 

Robert  Haskins  had  expressed  an  opinion  that  Mr. 
Burr  was  guilty ;  but  does  not  recollect  to  what  extent 
'  -2  went.  He  went  so  far  as  to  say,  he  was  guilty  of  an 


422  TRIAL   OF  AARON  BURR. 

intention  of  treason,  but  not  of  an  overt  act.     He  might 
have  said  he  deserved  to  be  hanged.     He  was  set  aside. 

William  R.  Fleming  had  formed  and  frequently  ex- 
pressed an  opinion,  that  Mr.  Burr  was  guilty  of  treason- 
able intentions  ;  and  might  have  made  a  general  declar- 
ation, not  only  as  to  intentions,  but  to  acts.  He  was  set 
aside. 

George  W.  Smith  suggested  a  right  to  the  same  ex- 
emption which  had  been  granted  to  Mr.  P.  Randolph. 
The  court  said  that  this  privilege,  would  be  incontesti- 
ble  unless  the  prisoner  should  urge  his  conflicting  privilege. 
Mr.  Burr  then  requested  Mr.  Smith  to  attend  to-morrow. 
Mr.  Smith  wished  to  be  excused,  as  he  had  some  important 
business  in  another  court  to  attend  to.  He  should,  how- 
ever, attend  on  the  trial  to-morrow  ;  but  it  might  now  be 
proper  to  state  the  general  impressions  which  he  had  re- 
ceived from  these  transactions.  He  had  generally  been  so- 
licitious  to  avoid  an  expression  of  his  opinions ;  and  as  in 
such  cases,  where  the  government  commences  a  prosecu- 
tion against  an  individual,  there  is  always  a  preponder- 
ance of  prejudice  against  him  ;  he  himself  had  not  only 
been  solicitous,  not  to  declare,  but  even  not  to  form,  an 
opinion.  No  one  can,  however,  avoid  reading  represen- 
tations of  these  things  in  the  public  papers  ;  and  he  had 
formed,  and  declared,  his  impressions,  that  Mr.  Burr  had 
entertained  designs  offensive  to  the  peace  and  laws  ot 
the  United  States.  What  was  the  species  of  guilt,  he 
had  not  pretended  to  define  ;  but  he  had  concluded  from 
the  newspaper  reports,  and  the  testimony  which  he  had 
heard  in  the  other  end  of  the  capitol,  that  his  designs 
were  of  a  military  nature,  and  that  they  might  amount,  at 
least,  to  a  misdemeanor.  He  was  suspended  for  further 
consideration. 

mead  T.  Mason  had  formed  no  deliberate 
opinion  in  regard  to  the  actual  commission  of  treason. 
But  it  was  his  deliberate  opinion  that  Mr.  Burr  had  de- 
signed, if  not  to  subvert  the  government,  at  least  to  di- 
vide the  country.  He  was  suspended  for  further  consid- 
eration. 

32.  Dabney  Minor  had  often  said  that  Mr.  Burr's  in- 
tentions were  unfriendly  to  the  United  States;  that  he 
had  said  that  if  he  were  guilty  of  what  was  charged 


IMPANELING     THE    JURY.  423 

against  him,  he  ought  to  be  hanged;  but  had  heard  no 
positive  testimony. 

Some  conversation  here  ensued  between  Mr.  Minor 
and  Mr.  Botts,  when  Mr.  Minor  was  suspended  until  to- 
morrow. 

Thus,  then,  of  the  whole  venire  that  appeared,  four 
only  were  elected  and  sworn,  and  nine  were  suspended 
till  arguments  should  be  heard  on  the  subject,  in  order  to 
aid  the  court  to  form  an  opinion  whether  they  were 
competent  jurymen  or  not. 

Here  a  discussion  of  considerable  length  took  place, 
on  the  propriety  of  confining  or  not  confining,  in  the  cus- 
tody of  the  marshal,  the  jurors  already  sworn,  till  the 
other  eight  should  be  sworn. 

The  court  then  decided  that  there  was  no  necessity 
for  delivering  the  jurymen  who  had  been,  or  should  be 
sworn  into  the  custody  of  the  marshal,  until  the  whole 
number  had  been  impaneled  and  sworn. 

TUESDAY,  August  nth,  1807. 

Present,  the  Chief  Justice  and  Judge  Griffin. 

The  Chief  Justice  informed  the  counsel  engaged  in  the 
cause,  that  the  court  was  ready  to  hear  any  observations 
on  the  question  before  them  yesterday,  which  they 
might  think  proper  to  make. 

Mr.  Martin. — We  are  ready  to  say  something  relative 
to  the  situation  that  a  juryman  ought  to  be  in,  to  enable 
him  properly  to  pass  upon  the  case  of  a  prisoner. 

Mr.  George  W.  Smith  was  the  first  of  the  jurors  sus- 
pended yesterday  for  subsequent  examination,  who  was 
called.  He  said  that  he  supposed  himself  entitled  to  ex- 
emption, from  his  profession  as  a  practicing  lawyer  in  this 
court :  that  by  the  law  of  the  land,  as  long  as  he  behaved 
with  respect  to  the  court,  and  diligence  to  his  client,  he 
ought  not  to  be  obstructed  in  the  pursuit  of  his  profes- 
sional duties  :  that  though  there  wa.s  no  express  statute 
exempting  him,  yet  he  was  exempted  by  reason  of  the 
law. 

Mr.  Burr  observed  that,  as  some  real  or  fictitious  diffi- 
culty had  occurred  in  the  selection  of  jurymen,  he  should 
be  extremely  sorry,  if  such  as  were  impartial  should  ob- 


424  TRIAL   OF    AARON  BURR. 

ject  to  themselves.  If  Mr.  Smith,  however,  raised  such 
objections,  he  himself  should  submit  to  the  decision  of 
the  court,  as  he  wished  to  be  perfectly  passive. 

Mr.  Smith  did  not  know  whether  he  deserved  such  an 
encomium  on  his  impartiality ;  but  as  the  arrangement 
of  his  professional  business,  in  other  courts  (though  not 
in  this  court  at  this  particular  time)  would  not  permit 
him  to  attend  the  trial  with  any  convenience,  he  should 
claim  the  privilege  of  exemption,  to  which,  in  his  opin- 
ion, he  was  entitled  by  law. 

Chief  Justice  said  that  this  privilege  would  certainly 
exempt  Mr.  Smith,  unless  his  attendance  were  claimed 
by  the  prisoner ;  and  as  Mr.  Burr  waived  this  right,  Mr. 
Smith  was  excused  from  attending. 

James  Henderson,  of  Wood  county,  who  was  absent 
yesterday,  was  next  called  ;  he  was  challenged  for  cause. 
On  being  examined  by  Mr.  Botts,  he  admitted  that  he 
was  not  a  freeholder,  and  was  consequently  set  aside. 

Mr.  Hamilton  Morrison  was  the  next  of  the  suspended 
jurymen  who  was  called.  He  declared  that  it  was  with 
pain  he  should  serve  on  the  jury;  that  he  did  not  wish 
to  serve  on  it ;  that  it  was  still  more  disagreeable  to  him, 
as  the  defendant  seemed  to  have  such  imaginary  thoughts 
against  him  ;  that  he  had  not  meddled  with  the  prison- 
er's transactions,  though  perhaps  he  might  have  done  so 
had  it  been  profitable  to  him.  James  Henderson  and 
Mr.  Neale  were  both  examined  as  to  what  they  might 
have  heard  him  say  on  this  subject,  and  both  declared 
that  they'had  heard  him  say  nothing  material. 

Mr.  Burr. — Have  not  these  rumors  excited  a  prejudice 
in  your  mind  against  me? 

Answer. — I  have  no  prejudice  for  or  against  you. 

Mr.  Botts. — Are  you  a  freeholder? 

Answer. — I  have  two  patents  for  land. 

Question. — Are  you  worth  three  hundred  dollars  ? 

Answer. — Yes;  I  have  a  horse  that  is  worth  the  half 
of  it. 

Question. — Have  you  another  at  home  to  make  up  the 
other  half? 

Answer. — Yes  ;  four  of  them.  [Here  the  court  said 
that  sufficient  cause  had  not  been  shown  against  his 
being  a  proper  juror.]  I  am  surprised  why  they  should 


IMPANELING    THE  JURY.  425 

be  in  so  much  terror  of  me.     Perhaps  my  name  may  be 
a  terror,  for  my  first  name  is  Hamilton. 

Mr.  Burr  then  observed  that  that  remark  was  a  suffi- 
cient cause  for  objecting  to  him,  and  challenged  him. 
Mr.  Morrison  was  therefore  set  aside. 

This  was  the  first  peremptory  challenge  which  the 
prisoner  made,  of  the  thirty-five  to  which  the  law  entitles 
him. 

Thomas  Creel,  another  of  the  suspended  jurymen  from 
Wood  county,  was  next  set  aside  by  the  court;  because 
he  said  that  he  had  both  formed  and  expressed  sentiments 
unfavorable  to  the  prisoner. 

John  H.  ypshaw  was  next  called  up.  He  stated,  before 
he  was  interrogated,  that  he  had  received  strong  impres- 
sions against  Mr.  Burr,  but  that  he  believed  he  could 
find  a  verdict  according  to  testimony. 

The  Chief  Justice  wished  to  know,  whether  those  im- 
pressions related  to  the  general  charge  of  treason  against 
the  prisoner,  or  to  what  happened  before,  or  to  what 
circumstances? 

Mr.  Upshaw  answered,  that  they  related  to  the  trans- 
actions in  the  western  country ;  and  added,  "  my  opin- 
ions have  changed  as  the  lights  of  evidence  seemed 
successively  to  appear.  It  was  my  first  impression,  that 
he  had  nothing  more  in  view  than  the  settlement  of  the 
lands  on  the  Waschita.  I  next  supposed  that  he  in- 
tended to  attack  Mexico  ;  but  that  as  a  mean  of  effect- 
ing that  object,  he  intended  to  attack  New  Orleans ;  and 
last  of  all,  that  his  plans  were  of  a  more  complicated 
nature ;  but  that  he  never  thought,  till  after  his  leaving 
the  mouth  of  the  Cumberland,  that  Burr  had  treasonable 
designs  ;  but  that  he  could  not  recollect  particularly  the 
times  when  he  formed  or  changed  these  opinions. 

Mr.  Wickham  asked  him  whether,  as  the  result  of  all 
these    impressions,    he  did  not    consider    Mr.    Burr    a 
dangerous  man  ?     He  answered,  that  that  was  his  im 
pression. 

Mr.  Mac  Rae. — Have  you  formed  or  delivered  an  opin- 
ion, that  he  has  committed  an  overt  act  of  treason,  as 
charged  in  the  indictment? 

Answer. — I  have  not. 

Mr.  Martin  said  that  he  should  state  whether  there 


426  TRIAL   OF  AARON   BURR. 

were  any  bias  on  his  mind,  although  he  did  not  believe 
that  an  overt  act  had  been  committed  ;  for  if  he  had 
such  bias,  he  was  unfit  for  a  juryman. 

Mr.  Baker. — Have  you  not,  in  your  own  county, 
argued  in  conversation  to  show  that  Mr.  Burr  was  guilty, 
and  that  there  was  strong  presumptive  evidence  against 
him  ? 

Answer. — I  have  done  so  ;  and  not  only  supported 
such  opinions,  but  have  gone  on  to  vindicate  the  pro- 
priety of  the  measures  taken  by  the  government. 

Mr.  Burr  said  that  enough  had  appeared  to  shovr 
that  Mr.  Upshaw  had  taken  up  strong  prejudices  against 
him. 

Mr.  Hay  asked  whether  such  testimony  as  that  could 
disqualify  him  as  a  juryman  ? 

Mr.  Upshaw  said  that  he  had  been  in  the  habit  of 
impressing  on  others  his  prejudices,  or  opinions,  that 
Burr  was  a  dangerous  man  to  the  community. 

Mr.  Mac  Rae. — I  beg  leave  to  ask,  whether  personally 
you  have  any  prejudices  against  him  ?  Have  you  any 
other  prejudice  against  him,  except  that  he  has  enter- 
tained treasonable  designs  ? 

He  answered  explicitly  that  he  had  not. 

Mr.  Burr. — Had  you  not,  anterior  to  those  transac- 
tions rumored  in  the  western  country,  formed  an  un- 
favorable opinion  of  me  ? 

Mr.  Upshaw  answered  that  he  had  before  (with  other 
persons)  formed  rather  an  unfavorable  opinion  against 
him,  during  the  presidential  election  (of  1801),  though 
he  had  no  positive  evidence  on  that  subject. 

Here  Mr.  Upshaw  was  suspended,  till  the  general  ques- 
tion on  the  doctrine  of  challenges  should  be  argued. 

Mr.  Martin  rose  to  proceed  with  his  argument.  He 
stated  that  it  was  one  of  the  soundest  principles  of  law, 
that  every  man  had  a  right  to  be  tried  by  an  impartial 
jury  :  that  this  right  extended  to  all  cases,  civil  and  Crim- 
inal ;  but  that  in  criminal  cases  it  was  secured  by  the 
constitution  in  a  positive  and  sacred  manner,  so  that  all 
altercation  as  to  the  meaning  of  the  terms  was  rendered 
unnecessary. 

Mr.  Mac  Rae  apologized  for  interrupting  Mr.  Martin, 
but  suggested  that  it  would  be  a  saving  of  time,  first, 


IMPANELING    THE    JURY.  427 

to  know  the  objections  to  all  the  jurors,  and  then  to  have 
one  general  argument,  as  to  all,  instead  of  having  an  ar- 
gument on  each  particular  case  as  it  might  occur :  that 
he  wished  to  economize  time,  and  that  the  experience  of 
yesterday  showed  the  propriety  of  saving  time  as  much 
as  possible.  Evidence  is  now  heard  as  to  this  case,  and 
if  it  be  argued,  the  court  must  hear  arguments  in  the 
case  of  every  other  juryman  :  he  did  not  seethe  necessity 
of  holding  twelve  arguments  instead  of  one,  where  the 
cases  were  precisely  similar.  He  did  not  wish  to  pre- 
scribe to  gentlemen  their  course  of  proceeding,  but  he 
really  supposed  that  one  argument  would  suffice  for  all 
the  cases. 

To  this  the  Chief  Justice  assented. 

Mr.  Martin. — I  have  been  repeatedly  interrupted  by  the 
gentlemen  ;  and  they  have  found  out  in  their  infinite  wis- 
dom, that  we  are  to  hold  twelve  arguments  on  this  point. 
They  talk,  sir,  of  economy  of  time:  they  have  shown  a 
happy  instance  of  this  economy  of  time,  when  I  was 
here  on  a  former  occasion.  Lknow  what  kind  of  economy 
they  wish.  They  wish  us  to  be  silent;  they  would,  if 
they  could,  deprive  Mr.  Burr's  counsel  of  an  oppor- 
tunity of  defending  him,  that  they  might  hang  him  up 
as  soon  as  possible,  to  gratify  themselves  and  the  gov- 
ernment. 

Mr.  Mac  Rae. — That  is  a  most  unprincipled  and  most 
unfounded  assertion. 

Mr.  Burr  said  that  he  thought  the  gentlemen  for  the 
prosecution  were  not  altogether  so  wrong.  Generally 
the  question  was  whether  those  gentlemen  who  said  that 
they  were  convinced  that  he  had  treasonable  intentions 
were  impartial  and  proper  jurymen  ?  They  had  avowed 
their  conviction  as  to  these  intentions  in  court  ;  that  one 
argument  would  apply  to  all ;  and  if  the  principle  were 
once  fixed,  it  would  not  be  necessary  to  renew  it  in  the 
case  of  each  gentleman  ;  that  they  had  entered  into  the 
argument  because  they  wished  the  principle  to  be  settled, 
and  then  it  could  be  applied  to  the  particular  cases. 

Mr.  Hay. — We  wish  the  argument  to  proceed  without 
hearing  ourselves  grossly  insulted  ;  without  making  ac- 
cusations against  us  that  are  malicious  and  groundless. 
We  said  nothing  that  could  give  offense  to  the  feeling* 


428  TRIAL   OF  AARON   BURR. 

of  any  gentleman.  The  gentlemen  can  not  say  with 
truth,  that  we  wish  to  deprive  them  of  the  right  of  de- 
fending their  client.  The  charge  is  unjust.  I  wish  him 
to  have  a  fair  trial,  and  justice  to  be  done  with  all  my 
heart  ;  but  I  feel  myself  hurt,  and  grossly  insulted,  when 
the  gentlemen  on  the  other  side  charge  me  with  feel- 
ings that  are  disgraceful  to  humanity.  I  trust,  therefore, 
that  the  arguments  will  no  longer  be  conducted  with 
such  indecorum. 

The  "Chief  Justice  had  hoped  that  no  such  allusions 
would  have  been  made  ;  that  the  government  ought  to 
be  treated  with  respect,  and  that  there  was  a  delicacy  to 
be  observed  on  that  subject,  from  which  he  hoped  there 
would  be  no  departure  hereafter. 

Mr.  Burr. — I  rose  to  stop  the  progress  of  such  lan- 
guage when  up  before.  I  had  made  sufficient  apologies, 
if  any  were  necessary,  for  any  expressions  which  had 
been  used,  and  I  had  hoped  that  no  allusions  would  Have 
been  made  to  the  subject.  It  will  be  recollected,  that  I 
have  constantly  manifested  my  displeasure  at  such  ex- 
pressions. I  have  carefully  avoided  such  myself,  and 
imposed  similar  restraints  upon  my  counsel ;  and  urged 
that  the  government  should  be  treated  with  the  utmost 
delicacy,  though  there  was  great  provocation  from  the 
gentlemen  on  the  part  of  the  prosecution,  which  would 
have  justified  harsh  terms.  I  hope  these  things  will  cease, 
On  the  part  of  my  counsel,  I  am  sure  they  will  cease. 

Mr.  Martin. — I  have  no  wish  to  hurt  the  feelings  of  a 
single  individual,  but  they  have  no  right  to  hurt  our 
feelings  ;  and  when  I  am  so  often  interrupted  and 
charged  with  wasting  the  public  time,  and  the  gentle- 
men still  persist  in  their  observations,  I  can  not  repress 
mine. 

As  to  the  point  before  the  court,  what  I  am  about  to 
adduce  will  show  unequivocally  that  these  gentlemen  are 
not  proper  jurymen.  The  emphatic  language  of  the 
constitution  is  that  jurors  shall  be  free  from  all  bias  and 
prejudice.  The  constitution  of  the  United  States 
requires  that  every  criminal  shall  be  tried  by  an  "impar- 
tial jury  ;  "  that  is,  a  jury  that  must  be  perfectly  indiffer- 
ent, and  have  no  prejudice  whatever  on  their  minds  ;  that 
every  juror  shall  receive  his  impressions  from  the  evi- 


1NPANELING  THE  JURY.  429 

dence  which  shall  be  adduced  in  legal  form,  and  under 
the  sanction  of  an  oath.  But  those  gentlemen  come  with 
minds  already  prepossessed  against  the  prisoner,  and  it 
will  require  stronger  evidence  to  eradicate  those  previous 
impressions ;  whereas,  according  to  the  constitution, 
there  ought  to  be  no  impression  against  a  criminal, 
except  what  arises  from  the  facts  proved  against  him  in 
court,  according  to  the  rules  of  law  on  the  subject.  To 
this  effect,  I  will  take  the  liberty  of  reading  Reeves' 
History  of  the  English  Law,  vol.  I,  p.  320,,  to  show  the 
rigid  impartiality  required  by  the  Law  of  England.  [Here 
Mr.  Martin  read  it.] 

Every  objection  that  is  valid  against  a  juryman  is 
valid  against  a  witness,  but  not  vice  versa.  The  credi- 
bility of  a  witness  may  be  questioned  though  he  be 
admitted  to  be  sworn,  but  a  juror  must  be  free  from 
every  objection  ;  exempt  from  everything  that  may  pos- 
sibly give  a  bias  to  his  mind  or  judgment.  He  must  have 
no  enmity  against,  or  friendship  with,  the  party  whose 
cause  he  is  to  try.  That  even  a  great  or  particular 
familiarity,  or  being  constantly  at  the  same  table  with 
him,  will  disqualify  him  from  being  a  juror.  See  2,d  vol. 
Reeves  English  Law,  p.  446.  The  general  principles 
herein  stated  show  how  particularly  cautious  the  law  is 
that  jurors  should  in  all  cases  be  free  from  all  impressions 
and  influence,  and  not  liable  to  be  suspected. 

In  confirmation  of  this  doctrine,  I  will  refer  your 
honors  to  Care's  English  Liberties,  p.  245,  a  work  of  very 
considerable  merit.  He  states  here  the  great  benefits  of 
the  trial  by  jury;  that  "  no  man's  life  shall  be  touched 
for  any  crime  whatsoever  till  found  guilty  on  two  trials; 
that  no  person  shall  suffer  death  but  by  the  verdicts  of 
twice  twelve  men  against  him,  or  two  juries;  one  to  find 
the  bill  or  charge  '  to  be  true,  and  the  other  on 
the  merits,  to  decide  on  full  and  legal  proof,  adduced 
on  both  sides,  all  of  which  jurors  must  be  honest,  sub- 
stantial, impartial  men."  In  page  248  he  tells  us  what 
he  means  by  an  impartial  man  :  "  that  he  ought  to  be 
least  suspicious,  that  is,  to  be  indifferent  as  he  stands 
unsworn ; "  that  his  mind  should  be  free  from  every 
cause  of  suspicion.  In  page  249  the  author  is  still  more 
explicit.  Among  other  qualities,  he  says,  "  that  jurors 


430  TRIAL    OF  AARON  BURR. 

must  be  free  of  and  from  all  manner  of  affections,  rela- 
tions, and  prejudices.  This  is  a  general  proposition 
extending  to  all  cases  whatsoever,  civil  as  well  as  crim- 
inal ;  and  if  a  man  to  be  a  proper  juror  must  be  divested 
of  all  affection  for,  and  all  relationship  to,  the  parties  in 
a  civil  case,  how  much  more  essential  is  it  that  he  should 
be  in  this  situation  in  a  case  of  life  and  death  ?  He  must 
be  also  "  free  from  all  prejudices,"  and  come  into  court 
in  that  situation  ;  that  all  his  impressions  are  to  be 
received  from  legal  evidence,  delivered  in  open  court, 
under  the  sanction  of  an  oath.  His  mind  must  be  totally 
indifferent  in  every  respect.  As  to  the  idea  of  a  person 
charged  being  guilty  or  innocent,  it  is  one  of  the  most 
sacred  as  well  as  humane  maxims  of  the  law  that  it  pre- 
sumes every  man  to  be  innocent,  till  an  impression  by 
the  evidence  is  made  on  the  minds  of  the  jurors  to 
remove  that  presumption.  I  do  not  understand  this 
quartering  and  halving  of  prejudices  and  partialities.  It 
is  not  sufficient  that  one  man  should  have  only  a  quarter 
of  the  prepossession  of  another  ;  or  that  this  man  should 
only  have  one-half,  or  three-fifths,  or  four-sevenths,  of 
the  prejudice  of  that;  but  the  law  requires  that  he  shall 
not  be  biased  at  all ;  that  he  shall  be  perfectly  impartial. 
The  constitution  has  secured  to  us  a  privilege  so  sacred 
that  no  law  nor  this  court  of  justice  can  take  it  from  us. 
Sir,  so  jealous  were  the  citizens  of  the  United  States  of 
their  rights  that  they  were  dissatisfied  with  the  constitu- 
tion in  its  original  form,  because  it  did  not  expressly 
provide  that  there  should  be  a  trial  of  every  offense 
"  by  an  impartial  jury."  They  therefore  chose  to  have 
it  secured  by  the  constitution,  so  that  there  thould  be 
no  possibility  of  being  deprived  of  an  "  impartial  jury- 
trial."  The  eighth  amendment  of  the  constitution  pro- 
vides that  "  in  all  criminal  prosecutions  the  accused  shall 
enjoy  the  right  to  a  speedy  and  public  trial  by  an  impar- 
tial jury  of  the  State  and  district  wherein  the  crime  shall 
have  been  committed." 

This  provision  in  the  constitution  which  secures  this 
sacred  right,  is  binding  on  every  judge,  sitting  on  the 
trial  of  every  criminal.  It  forbids  him  to  force  upon  him 
any  juror  that  is  not  perfectly  indifferent.  Gentlemen 
may  say  that  we  must  take  such  men  or  have  no  trial  at 


IMPANELING     THE    JURY.  •  431 

all.  Gentlemen  do  not  understand  the  subject  correctly. 
They  take  it  for  granted  that  Mr.  Burr  must  be  tried  at 
all  events,  and  hanged,  if  an  impartial  jury  can  not  be  had  ! 
But  I  contend  that  if  an  impartial  jury  can  not  be  found 
to  try  him,  he  can  not  be  tried  all  ;  because  the  constitu- 
tion says  that  he  "  shall  be  tried  by  an  impartial  jury." 
But  I  do  not  believe  what  has  been  said,  that  an  impar- 
tial jury  can  not  be  found  in  Virginia  !  I  have  no  doubt 
that  many  impartial  juries  can  be  found  in  Virginia.  The 
plea  of  necessity  of  trial  insisted  on  by  the  gentlemen  is 
not  founded  on  fact.  I  can  see  no  such  necessity  as  to 
render  it  compulsory  on  the  court  to  try  him  in  any 
event,  whether  an  impartial  jury  can  be  obtained  or  not ; 
because  the  constitution,  on  the  contrary,  declares  that 
no  person  shall  be  tried  till  he  can  be  tried  "  by  an  impar- 
tial jury."  But  let  us  see  what  has  been  done  in  such 
cases  in  that  country  from  which  we  have  derived  our 
system  of  laws.  It  is  not  thought  necessary  there  that  a 
man  shall  be  tried  by  a  partial  jury,  rather  than  that  he 
should  not  be  tried  at  all.  2d  Mac  Nally,  p.  667,  a  trial 
was  put  off  on  aft  affidavit  that  the  public  mind  was  so 
prejudiced  by  recent  publications  as  to  prevent  a  fair 
trial ;  because  those  publications  had  so  poisoned  the 
public  mind  that  a  fair  trial  by  an  impartial  jury  could 
not  be  obtained.  To  the  same  effect  and  in  the  same 
page  is  the  case  of  the  King  v.  the  Dean  of  St.  Asaph, 
and  the  case  of  the  King  v.  Robinson,  Brooks,  and 
others,  where  the  court  thought  it  correct  to  decide  that 
the  trial  should  be  postponed  till  another  term,  lest  cer- 
tain recent  publications,  giving  an  imperfect  statement 
of  the  evidence,  should  influence  the  public  mind.  If 
such  be  the  humanity  of  the  law  that  it  requires  that 
jurymen  shall  be  selected  from  the  public,  who  are  with- 
out bias,  and  persons  were  deemed  improper  jurymen  in 
that  case  on  account  of  a  trifling  and  temporary  bias 
produced  by  such  publications,  how  much  stronger  is  the 
objection  against  a  man  being  a  juryman  who  has  had  a 
bias  on  his  mind  for  years  and  declared  that  bias?  In 
that  case,  there  was  propriety  in  putting  off  J:he  trial, 
because  of  the  impossibility  of  selecting  a  proper  jury 
at  that  time,  out  of  that  public  whose  minds  had  been 
poisoned  by  the  publications. 


132  TRIAL   OF  AARON   BURR. 

On  the  present  occasion  let  us  examine  the  situation 
of  the  gentlemen  called  to  serve  as  a  jury.  They  are  to 
determine  on  the  guilt  or  innocence  of  the  accused,  aris- 
ing from,  and  depending  on,  certain  transactions  in  the 
western  country.  Do  they  come  hither  with  a  bias,  or 
do  they  come  perfectly  indifferent  as  to  the  innocences 
criminality  of  Mr.  Burr?  The  crime  consists  in  intention 
and  act.  The  intention  constitutes  the  most  important 
part  of  the  crime.  The  act  of  itself  may  be  innocent; 
but  treasonable  views  or  designs  annex  guilt  to  it.  These 
gentlemen  say,  "  We  are  perfectly  satisfied  as  to  the 
treasonable  intentions,  designs,  and  purposes  of  the 
accused."  To  have  "believed  that  his  purposes  were  im- 
moral or  dangerous,  would  suffice  to  exclude  them  from 
serving  on  the  jury,  because  the  court  is  to  give  a  name 
to  these  crimes ;  but  when  they  go  so  far  as  to  assert  that 
his  designs  were  treasonable,  the  objection  against  them 
is  stronger.  When  they  come  forward  with  a  full  con- 
viction on  their  minds  that  he  has  been  engaged  in  prac- 
tices dangerous  to  the  community,  do  they  come  for- 
ward with  impartial,  unbiased  minds?  *  Their  minds  are 
already  half  made  up,  and  that  half  the  most  material 
part.  Twenty  or  thirty  men  on  Blannerhasset's  island, 
and  eight  or  ten  of  them  armed,  may  have  been  perfectly 
innocent,  as  if  they  came  together  with  an  intention  to 
shoot  game,  or  for  any  other  lawful  and  innocent  pur- 
pose. The  witnesses  may  tell  them,  "  We  have  not  a 
thought  that  he  has  committed  treason,  or  that  his  mind 
had  treasonable  designs;  we  know  of  no  evidence  to 
that  effect."  But  what  do  these  gentlemen  say  ?  That 
they  have  come  to  hear  witnesses  prove  such  and  such  acts, 
for  they  have  already  settled  the  intention  in  their  own 
minds  to  be  treasonable.  What  do  the  constitution  and 
common  reason,  and  common  justice  require  ?  Cer- 
tainly that  a  juryman  must  be  free  from  impressions 
both  as  to  the  intention  of  the  accused,  and  as  to  the 
act.  The  intention  constitutes  the  most  important  part 
of  the  crime;  and  their  minds  ought  to  be  as  free  from 
impressions  as  to  the  intention  as  they  ought  to  be  as  to 
the  act.  But  it  may  be  said  that  they  do  not  consider 
that  he  did  the  act  at  Blannerhasset's  island  ;  but  your 
honor  does  know  that  it  has  been  said,  and  it  will  be 


IMPANELING    TH  d  JURY.  433 

again  said,  that  if  the  act  be  do-ie  at  the  persuasion  of 
Mr.  Burr,  it  must  be  considered  as  committed  by  him. 
Let  me  familiarize  this  case  with  the  common  case  of 
burglary,  which  is  the  crime  of  breaking  and  entering  a 
house  in  the  night  time  with  an  intention  to  steal.  Sup- 
pose a  person  is  charged  with  the  crime  of  burglary,  and 
a  juryman  called  to  act  on  his  trial  says,  that  he  has  his 
mind  perfectly  made  up  that  the  person  indicted  in- 
tended to  steal ;  but  then  he  is  not  sure  that  he  got 
into  the  house.  Then  it  is  proved  that  he  did  enter  the 
house,  and  the  only  question  is  with  what  intent  he  did 
enter  the  house?  (because  he  may  have  gone  in  with  a 
mind  perfectly  innocent,  without  intending  to  take  any- 
thing.) Could  such  a  juryman  be  truely  said  to  be 
impartial?  tMost  certainly  he  could  not.  When  a 
man  is  indicted  for  burglary,  the  juror  to  try  him 
must  be  as  free  from  the  belief  that  he  intended  to 
commit  burglary,  as  that  he  went  into  the  house.  He 
must  be  free  from  every  impression  when  he  comes  to 
be  sworn.  These  observations  I  have  made  to  show, 
that  on  principles  of  common  law  and  justice,  every  jury- 
man in  every  case,  especially  in  criminal  cases,  ought  to 
be  without  any  prejudice.  How  can  they  be  said  to  be 
free  from  prejudice  who  say,  that  they  believe  that  Mr. 
Burr  had  treasonable  designs?  Do  they  not  come  with 
minds  ready  to  listen  to  whatever  may  confirm  his  guilt? 
and  will  they  not  listen  with  great  reluctance  to  argu- 
ments used  to  drive  away  their  prejudices  from  their 
minds?  It  is  to  be  lamented,  that  the  public  mind  is  in 
the  state  which  gentlemen  have  described,  but  it  certainly 
is  not  so  to  the  extent  which  is  represented.  I  do  not 
consider  the  forty-eight  gentlemen,  who  have  been  sum- 
moned, as  an  accurate  specimen  of  the  people  of  Virginia. 
To  the  honor  of  this  populous  state,  I  will  say,  that  I 
believe  that  a  great  many  impartial  juries  might  be  se- 
lected, and  I  should  think  it  strange  if  one  out  of  a  hun- 
dred had  imbibed  prejudices.  It  implies  some  degree  of 
malice  in  any  man,  judge  or  juryman,  to  suffer  his  mind 
to  be  thus  poisoned  against  a  person  accused,  when  the 
law  presumes  his  innocence.  How  came  these  impres- 
sions to  be  on  the  public  mind  ?  Did  we  busy  ourselves 
to  mislead  or  influence  it?  Was  not  The  Alexandria 
28 


434  TRTAL   OF  AARON   BURR. 

Expositor  and  other  papers  under  the  influence  of  our 
rulers  at  Washington,  constantly  occupied  in  throwing 
out  dark  hints  on  this  subject  long  before  the  proclama- 
tion of  the  president  appeared?  Have  not  great  pains 
been  taken  by  inflammatory  publications  to  impress  the 
minds  of  the  people  with  a  belief  of  his  guilt.  Those 
who  have  done  it  have  to  answer  for  it  ;  and  if  they 
have  created  such  a  prejudice  that  Mr.  Burr  can  not  be 
rightly  tried,  they  alone  are  to  blame.  I  am  sure  that 
the  respectable  gentleman  on  the  other  side  (though  I 
do  not  charge  him  with  having  done  so  designedly)  has 
contributed  to  increase  this  prejudice.  Has  he  not 
frequently  declared  himself  satisfied  of  the  guilt  of  Mr. 
Burr?  The  zeal  which  he  has  manifested  in  the  prose- 
cution was  well  calculated  to  create  prepossessions,  as  he 
must  be  presumed  to  be  well  acquainted  with  the  evi- 
dence against  him.  When  gentlemen  who  have  set 
their  hearts  on  the  success  of  the  prosecution  declare  that 
they  have  no  doubt  of  his  guilt,  other  people  will  be 
misled  by  their  declarations,  and  conclude  that  he  is 
guilty.  I  submit  the  case  to  the  court,  and  have  no 
doubt  those  jurymen  will  be  deemed  improper  to  serve 
on  this  jury,  because  the  constitution  requires  that  the 
mind  of  a  juror  shall  be  as  free  from  bias,  as  if  he  had 
never  heard  anything  of  the  cause  before.  Can  the  gen- 
tlemen conscientiously  say  that  they  stand  indifferent  ? 
Can  the  court  say  so  ?  But  if  they  be  excluded  from 
serving,  it  is  not  the  court  which  says  that  they  shall 
not  be  sworn  on  this  jury,  but  the  constitution  of  our 
country  which  prescribes  that  every  person  accused  "  shall 
be  tried  by  an  impartial  jury." 

Mr.  Botts  observed  that  every  crime  consisted  of 
a  great  many  constituent  parts  ;  and  that  the  question 
was,  when  a  crime  was  analyzed,  and  a  juryman  con- 
fessed, that  he  had  made  up  his  mind  on  a  number  of 
those  component  parts,  and  said  that  there  were  two  or 
three  of  those  parts  out  of  the  multitude  upon  which  he 
had  not  committed  himself,  could  such  a  man  be  regarded 
as  impartial  in  the  subject  he  is  to  investigate?  Is  he, 
said  Mr.  Botts,  without  bias  on  the  question?  Is  he  free 
from  prejudice?  The  man  who  has  made  up  his  mind 
on  part  of  the  crime,  is  not  without  a  bias  and  some 


1NPANELING  THE  JUR  Y.  435 

degree  of  predetermination.  What  portion  of  the  crime 
the  intention  may  make,  can  not  be  exactly  computed  ; 
but  it  is,  at  least,  an  important  feature  of  it.  Fix  on 
twelve  jurors  who  have  made  up  their  minds  as  to  the 
intention,  and  you  deprive  us  of  half  our  defense.  We 
have  a'  right  to  be  tried  by  a  jury  unprejudiced  as  to 
every  part  of  the  crime.  Mr.  Burr  has  a  right  to  insist 
th:it  he  is  not  guilty  either  of  the  intention  or  of  the  act ; 
and  if  there  should  be  complete  evidence  of  the  one,  yet 
it  will  not  suffice  without  full  proof  of  the  other.  If  you 
fix  on  twelve  jurors,  who  have  made  up  their  minds  as 
to  the  intention,  and  prove  an  act  to  them,  they  may  find 
a  verdict  of  guilty ;  when  twelve  jurors,  who  had  not  made 
up  their  minds  as  to  the  intention,  might  be  perfectly 
satisfied  that  no  crime  had  been  committed,  although  an 
act  were  proved  to  them  ;  because,  without  an  intention, 
there  can  be  no  guilt.  With  what  face  could  Mr.  Burr's 
counsel  stand  before  a  jury,  predetermined  as  to  the  inten- 
tion, and  urge  on  their  minds  an  innocent  intent?  With 
what  face  could  we  stand  before  a  jury,  who  had  made 
up  their  minds  as  to  the  act,  and  insist  that  no  act  was 
committed?  It  is  of  no  sort  of  consequence,  what  desciip- 
tion  of  intention  should  be  associated  with  the  act,  aor 
what  act  is  to  be  associated  with  the  intention  :  it  is  suffi- 
cient that  the  intention  is  an  ingredient  of  the  crime. 
Yesterday,  when  we  took  an  exception  to  a  juror  because 
he  said  that  the  accused  ought  to  suffer  punishment,  he 
was  rejected,  because  his  meaning  might  have  been,  and 
probably  was,  that  the  accused  deserved  death,  if  he 
ought  to  be  punished  at  all.  Could  we  offer  any  argu- 
ment to  the  gentleman  who  had  expressed  this  sentiment 
to  convince  him  that  the  prisoner  ought  not  to  suffer 
any  punishment  ?  There  is  no  kind  of  question,  but  the 
only  inquiry  with  him  would  have  been,  what  kind  of 
suffering  he  ought  to  be  subjected  to  ?  We  should  have 
been  precluded  from  investigating  with  any  rational  ex- 
pectation of  success,  the  general  principles  of  innocence. 
When  the  public  mind  is  so  infected  with  rancorous  pre- 
judices, it  is  necessary  to  select  a  jury  entirely  unbiased; 
for  he  might  as  well  be  condemned  at  once,  without  a 
trial,  as  to  be  tried  by  a  jury  prepossessed  against  him. 
Mr.  Burr  said  that  he  rose  to  narrow,  and  not  to  ex- 


436  TRIAL   OF    AARON  BURR. 

tend  th£  argument :  not  to  add  anything  more,  but  to 
throw  out  of  the  discussion  what  had  been  accidentally 
and  irregularly  introduced.  The  question,  said  Mr.  Burr, 
is  not  whether  great  prejudices  exist  in  the  public  mind,  or 
what  produced  them,  but  whether  these  jurymen  ought 
"or  ought  not  to  be  regarded  as  impartial  ?  I  sincerely 
hoped  that  this  point  would  not  have  been  introduced'. 
Certain  analogies  have  been  taken  from  the  crime  of 
treason  to  other  crimes.  I  wish  the  discussion  of  these 
analogies  at  present  to  be  omitted  ;  for  they  may  here- 
after, though  only  discussed  in  a  collateral  manner,  be 
construed  into  opinions.  The  inquiry  is,  whether  in 
civil  or  criminal  cases,  a  juryman  who  has  made  up  his 
mind  on  part  of  the  subject-matttr  in  controversy,  ought 
to  be  considered  as  impartial?  It  is  evident,  however, 
that  no  man  be  considered  as  impartial  who  has  made  up 
his  mind  as  to  the  intention.  Suppose  the  case  of  slaying 
a  man;  the  act  of  killing  may  be  differently  construed. 
It  may  be  justifiable,  excusable,  or  clergiable  ;  or  it  may 
be  murder.  Suppose  on  the  trial  of  the  party  accused 
of  the  murder  that  several  jurymen  come  forward  and  say, 
"  We  have  no  doubt  of  the  murderous  intent  of  the 
prisoner,  but  we  do  not  know  whether  he  killed  the 
deceased  or  not,"  would  such  jurymen  be  considered  as 
impartial,  or  be  permitted  to  be  sworn  to  try  him  ? 
Would  not  the  intention  in  that  case  constitute  the  prin- 
cipal part  of  the  offense  ?  But  I  hope  that  these  public 
impressions,  and  analogies  from  treason  will  not  be  drawn 
again  into  this  discussion. 

Mr.  Mac  Rae. — It  is  never  my  wish  in  any  period  of 
all  the  various  discussions  which  have  taken  place  before 
the  court  in  this  case,  to  travel  out  of  the  way  for  the 
purpose  of  making  any  observations  calculated  to  defend 
a  government,  which  in  my  opinion  requires  no  defense, 
or  to  say  anything  to  wound  the  feelings  of  the  prisoner. 
It  has  been  invariably  my  wish  to  confine  myself  to 
those  points  only  which  were  under  consideration.  I 
have  most  studiously  and  constantly  avoided  making  any 
remarks  to  wound  the  feelings,  or  excite  the  resentment 
of  the  opposite  counsel.  Frequent  as  have  been  the  oc- 
casions when  I  was  tempted  to  deviate  from  this  course, 
and  to  follow  the  example  set  before  me,  I  carefully 


IMPANELING    THE  JURY.  437 

avoided  availing  myself  of  it,  except  on  one  occasion, 
when  the  nature  of  the  case  was  such  that  I  could  not 
perform  my  duty  without  following  the  example,  and  re- 
pelling an  unmerited  arid  unprovoked  attack.  I  will  so 
far  respect  the  admonition  of  the  court,  that  I  will  not 
comment  upon  it,  but  will  pursue  the  course  that  it  may 
think  proper,  and  confine  myself  to  the  subject  under 
consideration.  But  I  must  at  the  same  time  be  per- 
mitted to  remark  that  I  shall  not  forever  do  this,  if  the 
admonition  of  the  court,  reiterated  over  and  over  again, 
will  not  be  regarded  by  the  gentlemen  on  the  other  side. 
If  they  make  undeserved  attacks,  I  will  retort  them  with 
the  force  with  which  they  ought  to  be  retorted  on  the 
quarter  from  which  they  come.  This  I  will  do  in  every 
case,  but  more  especially  in  cases  of  this  description.  It 
will  be  unnecessary  to  state  what  my  feelings  and  what 
my  wishes  in  this  case  are.  But  perhaps  it  may  be  a 
duty  which  in  some  degree  I  owe  to  myself,  after  con- 
sidering the  quarter  from  whence  the  attack  came,  and 
the  manner  in  which  it  was  made,  to  declare  to  this 
court,  to  this  people,  and  to  the  God  of  my  being  that  I 
have  never  felt  that  inhuman,  that  infamous,  and  worse 
than  diabolical  disposition,  to  wish  that  the  blood  of  the 
prisoner,  or  of  any  other  fellow-being,  should  be  shed. 
That  man  is  a  stranger  to  me,  who  thinks  that  I  have 
such  a  heart  and  disposition.  I  wish  that  the  prisoner 
may  have  a  fair  trial  before  an  unprejudiced  jury.  I  do 
not  wish  that  a  single  man  should  be  impaneled  on  it, 
who  is  not  impartial.  If  there  be  a  single  individual  on 
this  panel,  who  is  not,  within  the  precise  meaning  of  the 
constitution,  impartial,  and  fit  to  decide  between  the 
United  States  and  Aaron  Burr,  I  pray  the  court  to  reject 
him.  I  would  unite  with  the  counsel  of  the  accused  for 
the  sake  of  the  community  and  posterity,  in  praying,  not 
for  the  sake  of  justice  to  him  only,  but  to  every  person 
who  may  be  in  his  situation  in  future,  that  such  jurymen 
may  be  excluded  from  serving  on  this  jury.  But  if 
nothing  said  by  themselves,  or  by  the  witnesses  called  on 
to  show  their  incompetency,  shall  satisfy  the  court  that 
they  are  unfit  to  be  jurors,  I  trust,  that  as  they  ought, 
they  will  be  admitted  by  the  court. 
1  It  was  unnecessary  to  read  the  authorities  which  the 


438  TRIAL   OF  AARON  BURR. 

gentleman  adduced  ;  the  principles  therein  stated,  are 
not  controverted  ;  but  we  deny  their  application  to  the 
case  now  before  the  court.  If  any  of  those  gentlemen 
whose  case  is  now  before  the  court,  be  partial  or  biased, 
with  respect  to  this  cause,  or  have  really  an  ill-will  to  the 
party  accused,  then  their  case  comes  within  the  objection. 
Is  there  one  of  these  jurymen  who  feels  an  ill-will  against 
Aaron  Burr  ?  Does  any  of  them  entertain  a  personal 
prejudice  against  him?  Is  there  one  of  them  who  says 
that  bis  mind  has  received  a  bias  on  the  question  whether 
he  be  guilty  of  treason  or  not  ?  There  is  'nothing  which 
goes  to  justify  the  opinion  that  they  have  a  settled  bias, 
on  the  question  submitted  to  the  court ;  which  is  that 
sort  of  prejudice  which  the  law  recognizes  as  a  valid  ob- 
jection against  the  competency  of  a  juryman.  It  is  true, 
that  most  of  them  say,  that  they  have  formed  an  opinion 
as  to  his  intentions  ;  but  the  question  is,  whether  he  has 
committed  treason  or  not  ?  And  they  have  received  no 
information  to  enable  them  to  form  any  opinion  at  all  on 
this  question.  Indeed,  if  I  mistake  not,  some  of  them 
have  gone  so  far  as  to  declare  their  opinion  to  be,  that 
the  prisoner  had  never  committed  an  overt  act.  Now, 
what  is  the  argument  of  gentlemen  on  this  point?  It  is 
this:  that  this  crime  is  made  up  of  several  ingredients,  as 
intention  and  act ;  and  that  having  formed  an  opinion  on 
any  one  of  these  component  parts  disqualifies  a  man  for 
a  juror,  as  much  as  if  he  had  formed  his  opinion  on  the 
whole.  This  does  not  appear  to  me  to  be  sufficient  to 
produce  the  disqualification  contended  for.  They  must 
go  infinitely  beyond  this  point ;  as  that  they  believe  that 
Aaron  Burr  had  formed  treasonable  intentions,  in  con- 
nection with  individuals,  who  had  committed  an  overt 
act.  Does  any  of  these  gentlemen  say  that  his  opinion 
extended  so  far  ?  Those  intentions  may  have  related  to 
other  acts  than  those  charged  in  the  indictment,  to  acts 
committed  out  of  the  district,  in  some  other  state  than 
Virginia.  According  to  my  best  recollection  of  their  an- 
swers, the  treason  of  which  they  spoke,  related  to  acts 
intended  to  have  been  perpetrated,  not  in  Virginia  but  in 
a  different  state  (as  Tennessee  or  Kentuck}').  and  which, 
therefore,  are  not  now  before  the  court.  Some  of  these 
gentlemen  show  that  they  have  adverted  to  this  distinc- 


IMPANELING     THE    JURY.  439 

tion,  because  they  have  referred  to  the  opinion  of  one  of 
the  judges  now  on  the  bench,  formerly  pronounced  on 
this  point.  It  has  been  stated  from  the  bench,  that 
these  dangerous  designs  may  have  been  entertained,  but 
that  to  constitute  treason,  they  must  have  been  matured 
into  acts.  If  it  be  not  a  bias  in  this  court,  if  such  a  preju- 
dice do  not  exist  in  the  minds  of  the  judges,  why  should 
it  exist  in  the  minds  of  the  jury  ?  They  may  have  heard 
the  opinion  of  the  court,  that  various  criminal  projects 
may  have  been  revolved  in  the  minds  of  the  accused,  but 
that  this  was  not  sufficient  to  constitute  treason,  without 
the  commission  of  an  overt  act ;  and  paying  respect  to 
that  opinion,  they  may  have  formed  an  opinion  them- 
selves, that  there  were  treasonable  intentions,  but  they 
may  have  considered  the  rest  of  the  opinion  of  the  court, 
that  an  act  and  an  intention  joined  were  necessary  to 
constitute  treason,  and  that  designs  may  have  been 
formed  by  a  person  who  could  not  be  charged  with  any 
actual  offense.  With  respect  to  the  question,  whether 
the  accused  have  conceived  intentions,  which  have  been 
matured  into  treason  by  open  acts,  all  of  them  have  de- 
clared, on  that  point,  that  they  do  not  think  that  an  overt 
act  has  been  committed.  Suppose,  then,  that  having 
heard  the  opinion  delivered  by  the  court,  they  have,  in 
fact,  adverted  to  the  distinction,  that  the  formation  of 
designs  in  the  mind,  without  the  commission  of  an  overt 
act,  will  not  constitute  or  amount  to  treason,  will  they 
not  find  a  verdict  of  acquittal,  if  the  necessary  overt  acts 
be  not  legally  proved  before  them  ?  If  they  declare  that 
they  have  no  ill-will  or  personal  hatred  against  him,  will 
the  mere  expression  of  an  opinion,  that  he  had  enter- 
tained treasonable  designs,  disqualify  them  from  acting 
as  jurors?  We  wish,  sir,  that  he  may  have  a  fair  trial, 
that  he  may  be  tried  by  persons  as  capable  of  trying  him 
impartially>  as  if  they  had  never  heard  of  the  question 
now  before  the  court.  In  short,  by  such  a  jury  as  the 
constitution  of  the  United  States  has  secured.  I  trust 
it  will  never  be  said,  that  any  of  us  wished  to  deprive 
him  of  any  privilege  to  which  he  is  justly  entitled.  But 
if  these  jurymen  will  declare,  that  they  have  formed  no 
opinion  on  the  actual  commission  of  the  crime,  that 
they  are  unprejudiced  and  have  no  ill-will  against 


440  TRIAL     OF    AARON    BURR. 

the  accused,  it  does  appear  to  me,  and  I  trust  that 
it  will  also  appear  to  the  court,  that  they  are  competent 
to  serve  on  the  jury  who  are  to  try  the  accused. 

Mr.  Hay. — The  opposite  counsel  reminded  the  court, 
with  a  frequency  that  surprised  me,  that  they  were  en- 
titled to  an  impartial  jury.  Nothing  is  more  true.  By 
the  constitution  of  the  United  States,  by  the  principles 
of  common  law,  common  sense,  and  common  justice,  the 
accused  has  a  right  to  be  tried  by  an  impartial  jury. 

But  a  question  occurs,  about  which  he  has  not  been 
pleased  to  say  a  single  word,  Who  is  an  impartial  juror  ? 
This  is  a  question  which  I  conceive  has  already  been  de- 
termined by  the  law.  I  wonder  that  the  gentleman's 
extensive  learning  has  not  enabled  him  to  give  a  correct 
exposition  of  it.  I  can  not  subscribe  to  his  doctrine  on 
this  point.  Impartial  they  may  be  said  to  be,  who  en- 
tertain tiie  common  sentiments  and  feelings  of  a  great 
majority  of  the  people,  and  who  are  taken  from  the  mass 
of  the  community.  According  to  my  judgment,  such  a 
jury  may  be  said  to  be  impartial.  Who  shall  say  that  it 
is  not  an  impartial  jury?  Will  this  court  undertake  to 
pronounce  its  opinion  that  the  majority  of  this  district 
are  unfit  for  jurors,  and  not  to  be  trusted  to  decide  on 
plain  facts ;  or  on  the  true  construction  of  the  circum- 
stances and  transactions  in  the  west,  within  the  meaning 
of  this  part  of  the  constitution  ?  I  believe  the  court 
would  be  very  unwilling  to  say  so  of  all  the  people  of 
this  district.  It  would  be  to  pronounce  a  libel  on  the 
state.  The  majority  would  very  truly  return  the  com- 
pliment, by  saying,  that  the  opinion  was  one  which 
ought  not  to  have  been  given,  and  by  a  person  not  com- 
petent to  give  it.  "  You,  who  censure  us  in  this  manner, 
show  the  prejudices  by  which  you  are  yourselves  act- 
uated." What  say  these  jurymen?  That  they  have  at- 
tended to  newspaper  publications,  which  have  given 
them  information  on  a  subject  which  has  excited  uni- 
versal attention.  Every  man  in  the  community  has 
formed  some  opinion  on  it.  I  will  venture  to  say,  that 
there  is  not  a  man  in  Virginia,  however  humble  or  ob- 
scure his  situation,  or  supine  his  disposition,  or  however 
much  occupied  in  business,  who  has  not  taken  some 
opinion  or  impression  on  this  subject,  and  communicated 


IMPANELING    THE    JURY.  441 

it  to  others.  But  these  things  have  been  innocently 
done,  without  any  sentiment  of  ill-will  to  the  accused. 
The  great  majority  of  the  people  have  received  impres- 
sions of  those  transactions  from  newspaper  publications, 
without  any  prejudice  against,  or  even  knowledge  of  the 
accused.  Is  it  reasonable,  then,  to  suppose  that  the  maj- 
ority of  the  people,  without  any  personal  ill-will  against 
the  accused,  without  even  the  least  personal  knowledge 
of  him,  are  by  these  general  and  slight  impressions,  ren- 
dered incapable  of  deciding  fairly  and  impartially?  Can 
it  be  reasonable,  that  the  accused  should  have  it  in  his 
power  to  object  to  the  great  majority  of  the  people,  as 
partial  and  incompetent,  on  such  slight  and  trivial  grounds 
as  these  ?  What  is  that  impartiality  which  the  law  re- 
quires in  a  juror?  It  is  a  disposition  of  mind  to  hear  the 
evidence  on  both  sides,  and  decide  thereon  according 
to  the  immutable  principles  of  natural  reason  and  justice. 
To  exclude  from  serving  on  his  jury  such  an  immense 
majority  of  the  people,  on  such  slender  grounds,  would 
probably  secure  impunity  to  the  accused.  There  may 
perchance  be  some  ignorant  and  obscure  individual,  some 
solitary  hermit,  shut  up  in  the  hollow  of  a  tree,  or  in  an 
inaccessible  cavern,  secluded  from  all  human  concerns, 
who  has  received  no  impression  on  this  subject,  because 
the  history  of  these  transactions  has  never  penetrated  to 
his  solitude.  But  those  who  have  intercourse  with  their 
fellow-citizens,  must  have  heard,  in  common  with  the 
rest  of  the  community,  the  many  reports  of  a  deep-laid 
plot  and  conspiracy  against  the  peace  and  union  of  these 
states  ;  that  the  accused  had  formed  some  great  ambitious 
scheme  for  his  own  personal  aggrandisement,  to  accom- 
plish which,  he  felt  no  hesitation  in  hazarding,  no  re- 
morse in  producing,  all  the  horrors  of  a  civil  war.  We 
are  divided  into  parties  who  have  different  opinions  on 
political  subjects.  I  do  not  say  that  they  are  exactly 
arranged,  or  united  to  a  man,  as  to  this  question  ;  but  I 
know  that  different  sides  have  been  taken  :  that  every 
man  in  this  community  has  taken  his  side,  and  formed  an 
opinion  either  favorable  or  unfavorable  on  the  subject. 
But  still  the  great  majority  of  the  people  stand  on  ground 
of  perfect  neutrality  as  to  the  actual  guilt  of  Burr  and 
his  associates.  The  impression  whirh  they  may  have  re- 


442  TRIAL  OF  AARON  BURR. 

ceived  from  reports,  and  newspaper  publications,  will 
vanish  like  air,  as  soon  as  they  hear  the  evidence,  on 
which  they  will  be  sworn  to  decide.  I  think  this  is  the 
language  of  common  sense,  and  that  it  must  convince 
the  court,  however  it  may  be  disregarded  by  the  gentle- 
man who  began  the  arguments  on  this  point. 

He  has  produced  some  authorities  from  Reeves  and 
Mac  Nally,  which  do  not  bear  on  the  subject  in  the  least 
degree  :  but  I  shall  cite  two  that  do  apply  to  this  case. 
The  first  was  a  decision  in  the  case  of  Callender,  of  which, 
however,  I  did  not  then,  nor  do  I  yet,  approve.  I  do  not 
think  that  in  Callender's  case  Judge  Chase  pronounced 
the  law  correctly.  I  do  not  see  any  difference  between 
forming  an  opinion,  and  forming  and  expressing  an  opin- 
ion. A  juryman  ought  to  be  excluded  from  serving  on 
the  jury,  if  he  have  formed  an  opinion,  though  he  may 
not  have  communicated  it  to  any  person.  It  is  the  for- 
mation, and  not  the  expression  of  his  opinion,  that  indis- 
poses him  to  attend  to  the  evidence.  However,  it  was 
not  my  business  then,  nor  is  it  now,  to  settle  the  law  ;  but 
I  thought  it  then  settled.  The  question  put  to  the  jury- 
men, was,  "  Have  you  formed  and  delivered  an  opinion 
on  the  subject-matter  of  this  indictment?"  There  was 
nothing  said  as  to  men's  impressions  in  relation  to  the 
acts  of  the  accused,  or  their  indulging  prejudices  against 
him.  There  was  not  a  man  among  the  jury  who  tried 
him,  who  had  not  the  strongest  prejudice  against  him,  for 
his  improper  conduct ;  and  very  justly.  It  was  pro- 
nounced to  be  the  law,  that  it  was  a  libel.  I  never  heard 
it  controverted  before  these  remarks  ;  but  that  is  not 
the  question  now,  but  a  question  which  is  general,  indefi- 
nite, and  vague;  a  nice  metaphysical  disquisition,  how 
far  a  man's  mind,  by  impressions  founded  on  mere  reports, 
is  rendered  incompetent  to  decide  impartially  on  legal 
evidence  ?  The  question  ought  to  be  decided  by  the 
court,  whether  a  juryman  be  in  that  state  of  neutrality 
between  the  United  States  and  a  prisoner,  which  will 
enable  him  to  decide  impartially.  According  to  Callen- 
der's .case,  it  was  sufficient  to  establish  the  competency 
of  a  juryman,  if  he  had  not  formed  and  expressed  an 
opinion  on  the  subject-matter  of  the  indictment ;  and, 
according  to  the  decision,  all  these  gentlemen  are  admis- 


IMPANELING    THE  JURY.  443 

sible,  because  none  of  them  have  formed,  much  less 
formed  and  expressed,  such  an  opinion.  In  2  Hawkins, 
ch.  43,  sect.  29,  on  the  subject  of  challenges,  it  is  stated 
to  be  law,  "  that  it  hath  been  adjudged  to  be  no  good 
cause  of  challenge,  that  the  juror  hath  found  others  guilty 
on  the  same  indictment ;  for  the  indictment  is  in  judg- 
ment of  law,  severally  against  each  defendant,  for  every 
one  must  be  convicted  by  particular  evidence  against 
himself;  "  and  in  the  28th  section,  he  says,  that  "  it  had 
been  allowed  to  be  a  good  cause  of  challenge,  on  the  part 
of  the  prisoner,  that  a  juror  has  declared  his  opinion  be- 
forehand, that  the  party  is  guilty  or  will  be  hanged,  or 
the  like  ;  yet  it  hath  been  adjudged,  that  if  it  shall  ap- 
pear that  the  juror  made  such  declaration  from  his  knowl- 
edge of  the  cause,  and  not  out  of  any  ill-will  to  the  party, 
it  is  no  cause  of  challenge."  Here  it  is  decided  that  if  a 
juryman  say  that  the  party  accused  will  be  hanged,  or  is 
guilty,  not  of  the  intention,  but  of  the  act,  yet  if  he  made 
this  declaration  from  his  own  knowledge  of  the  cause, 
and  not  from  ill-will  to  the  prisoner,  he  is  a  proper  juror. 
But  these  gentlemen  have  not  declared  as  much;  they 
have  not  declared  their  belief  that  the  accused  is  guilty 
of  the  act,  but  have  merely  stated  as  the  result  of  their 
reflection  on  the  transactions  in  the  western  country, 
that  he  intended  to  commit  the  act.  According  to  the 
authority  of  this  case,  therefore,  these  gentlemen  are 
competent  jurymen.  I  do  not  say  that  this  is  law  posi- 
tively, but  I  find  it  here  written,  and  it  appears  to  me  to 
be  founded  in  good  sense.  According  to  the  doctrine  in 
the  other  section  just  read,  several  men  may  be  compre- 
hended in  the  same  indictment,  all  of  whom  may  be 
tried  separately  ;  and  the  same  juror  who  has  found  a  ver- 
dict against  one  of  them,  is  competent  to  try  another  on 
the  same  indictment.  His  former  verdict  is  no  cause  of 
challenge.  But  the  evidence  which  is  admissible  against 
one,  may  be  so  against  the  other.  To  have  already  de- 
cided on  that  evidence,  is  to  declare  that  the  party  is 
guilty  of  the  offense  both  as  to  intention  and  act  ;  and  yet 
this  circumstance  of  having  pronounced  a  verdict  on 
the  same  testimony,  does  not  furnish  grounds  of  chal- 
lenge against  him.  Many  more  cases  might  be  produced, 
but  these  are  sufficient  to  show  that  these  are  proper 


444  TRIAL   OF  AARON  BURR. 

jurymen,  if  they  be  not  under  the  influence  of  malice  or 
ill-will  against  the  accused,  whatever  general  impressions 
their  minds  may  have  received.  I  admit,  that  if  any  of 
them  had  made  up  his  mind  that  the  accused  was  guilty 
of  treason,  it  would  be  a  good  cause  of  challenge  ;  but 
that  is  not  the  case  with  any  of  them.  Mr.  Martin  has 
made  a  quotation  from  Mac  Nally,  to  show  that  the 
court  would  postpone  a  trial,  because  the  public  mind 
had  been  improperly  excited  by  recent  inflammatory 
publications,  touching  the  cause  depending  before  it.  I 
will  only  observe  that  if  this  were  a  motion  to  postpone 
the  trial,  this  argument  might  apply,  if  the  facts  of  such 
publications  existed ;  but  have  they  manifested  any  dis- 
position or  wish  to  obtain  a  postponement  of  the  trial  till 
another  term  ?  Why,  then,  do  they  urge  such  an  argu- 
ment, while  they  fail  to  move  for  a  postponement  ?  They 
wish  to  avail  themselves  of  a  principle,  without  perform- 
ing the  act  which  would  justify  its  application.  But 
another  observation  of  Mr.  Martin  may  deserve  particu- 
lar notice  ;  that  it  would  be  proper  to  postpone  the 
trial,  till  a  fair  and  impartial  jury  could  be  had. 

Here  Mr.  Martin  and  Mr.  Hay  differed  as  to  the  pre- 
cise import  of  the  terms  which  he  had  used,  and  Mr.  Hay 
proceeded.  He  stated  that  the  community  was  divided 
into  parties ;  that  there  was  an  immense  preponderance 
on  one  side ;  but  that  both  parties  had  ascribed  certain 
designs  to  Mr.  Burr,  and  had  taken  certain  impres- 
sions ;  that  these  were  only  the  common  sentiments  and 
feelings  of  the  country  ;  and  that  to  exclude  from  the 
jury  all  those  who  had  these  sentiments  and  feelings, 
would  amount  to  a  declaration,  that  the  great  majority 
of  the  people  ought  not  to  be  trusted  with  a  decision, 
which  might  possibly  be  equal  to  an  acquittal. 

Mr.  Wirt. — It  is  much  to  be  wished  in  this  case,  and 
in  every  case,  that  a  jury  could  be  found  of  those  pure 
materials  which  Mr.  Martin  has  desired.  He  seems  to 
expect  that,  in  every  case,  and  more  especially  in 
the  important  case  which  now  occupies  the  attention  of 
the  court,  the  jury  should  come  without  any  impression, 
with  minds  as  pure  as  the  unsoiled  snow  on  Dian's  lap. 
But  is  this  practicable?  Does  the  experience  of  the 
world  justify  the  hope  that  such  a  jury  can  be  found? 


IMPANELING    THE  JURY.  445 

The  case  can  not  exist,  and  the  law  does  not  require  it. 
The  authorities  relied  on  by  Mr.  Martin  are  elementary 
and  abstract ;  and  are,  I  conceive,  fiot  to  be  trusted, 
when  a  question  of  practice  is  to  be  decided  by  the  court. 
They  deal  in  generals;  and  when  they  descend  to  par- 
ticulars, they  all  express  a  distinct  reference,  and  point 
directly  to  the  person  of  the  accused.  If  these  books 
were  fit  to  be  trusted,  and  did  not  their  generality  ex- 
clude them  from  familiar  use,  the  language  used  in  the 
specification  is  clearly  expressive  of  enmity  or  ill-will 
against  the  accused.  I  beg  leave  to  mention  another  au- 
thority to  show  that  these  books  are  unfit  to  be  trusted 
as  authority.  In  Reeves,  it  is  stated  that  any  friendship 
for,  or  familiarity  with  the  person  accused,  is  a  proper 
ground  of  objection  to  a  juror ;  but  these  general  phrases 
are  not  sanctioned  by  practice.  For  in  Tooke's  trial,  an 
objection  was  made  to  John  Thompson  as  a  juror,  be- 
cause an  intimacy  of  thirty-four  years'  continuance  had 
subsisted  between  him  and  Mr.  Tooke;  but  the  objection 
was  overruled  by  the  judge.  These  two  cases  are  contra- 
dictory. It  is  important,  in  every  case,  that  the  princi- 
ples of  law  should  be  fixed.  It  is  important  to  the  peo- 
ple of  every  nation,  that  their  rules  of  action  should  not 
be  continually  floating  on  the  waves  of  uncertainty,  but 
that  they  should  be  known  and  settled,  in  order  that  men 
should  know  how  to  steer  their  course.  I  trust  that  they 
will  be  always  so  in  this  country.  Permit  me  to  advert  to 
a  decision  in  our  own  country  ;  the  case  of  Callender.  I 
adduce  it  for  the  sole  purpose  of  comparing  it  to  the 
doctrine  now  in  discussion.  When  Mr.  John  Basset,  one 
of  the  jurymen,  was  called,  he  challenged  himself,  because 
he  had  seen  and  read  the  book  (The  Prospect  before  Us) 
for  the  publication  of  which  he  was  prosecuted,  and 
made  up  his  mind  that  it  was  a  libel :  but  he  had  not 
made  up  his  mind  as  to  Callender  being  the  publisher  of 
the  libel.  His  objection  was  overruled,  and  he  was 
sworn  on  the  jury  ;  though  he  had  made  up  his  opinion, 
that  the  publication  was  a  libel,  which  I  conceive  to  be 
the  principal  point.  He  only  did  not  know  who  was  the 
author.  But  what  is  the  great  question  of  libels  in  Eng- 
land? Is  it  who  is  the  author?  Is  it  about  the  mere 
fact  of  publication,  that  the  brightest  tears  of  eloquence 


446  TRIAL   OF  AARON   BURR. 

are  shed  ?  The  question  in  every  case  is,  libel  or  no  libel, 
The  inquiry  always  is,  whether  it  be  a  libel  or  not  ?  The 
fact  of  publication  te  a  question  of  a  comparatively  trivial 
nature.  Then  when  Mr.  Basset  was  admitted  on  the 
jury,  according  to  the  idea  of  one  of  the  counsel  on  the 
other  side,  Callender  was  robbed  of  half  of  his  defense  as 
to  that  juror  ;  for  the  great  question  had  been  previously 
settled  in  his  mind.  The  fact  to  be  ascertained  was  un- 
important. Apply  the  principle  of  this  decision  in  that 
case  to  this  case.  We  will  suppose  it  to  be  the  fact,  that 
these  jurymen  may  have  said  that  the  assemblage  of 
men  on  Blannerhasset's  island  was  high  treason  in  the 
parties  composing  it;  but  they  knew  not,  and  this  would 
not  prove,  that  Mr.  Burr  was  there  or  connected  with  it. 
Here  the  two  cases  would  be  very  similar. 

These  gentlemen  would  have  made  up  their  minds 
that  the  assemblage  was  treasonable.  John  Basset  made 
up  his  mind  that  the  publication  was  a  libel.  The  great 
facts  would  be  fixed  in  the  minds  of  the  jurors  in  both 
cases,  and  nothing  would  remain,  but  to  trace  the  facts 
to  the  party  accused.  But  the  present  case  falls  far 
short  of  that.  These  gentlemen  say  that  they  have 
taken  up  some  impressions  from  newspaper  publications 
that  Burr  had  treasonable  designs  ;  but  they  have  not 
said  that  the  assemblage  on  the  island  was  treason, 
which  consists  of  intention  and  fact ;  and  if  they  had  said 
so,  they  would  be  good  jurymen,  according  to  Basset's 
case.  He  had  made  up  his  mind  on  the  great  fact  that 
the  book  was  a  libel ;  and  in  this  supposed  case,  these 
jurymen  would  have  concluded  that  the  act  of  meeting, 
armed,  on  the  island,  was  treason  ;  but  as  they  have  not 
gone  so  far  as  Basset,  and  he  was  received  as  a  juror,  the 
court,  I  presume,  will  receive  them  as  jurors.  In  another 
point  of  view,  Callender's  case  was  stronger  than  this.  In 
that  case,  there  was  no  possibility  of  counteracting  the 
impression  that  Basset  had  of  the  fact,  that  the  book  was 
a  libel.  His  opinion  was  formed  upon  the  book  itself ; 
and  there  was  no  other  evidence  to  produce,  to  change 
that  opinion.  But  these  gentlemen  have  seen  nothing 
but  the  statements  in  the  newspapers.  They  have  re- 
ceived no  such  fixed  impressions ;  their  conviction  is 
commensurate  with  the  evidence.  Thev  say  that  their 


IMPANELING     THE    JURY,  447 

conviction  has  gone  as  far  as  the  depositions  which  have 
been  published  seemed  to  justify,  but  not  further  ;  that 
they  were  willing  to  hear  other  evidence,  and  to  retract 
their  opinions.  But  Basset's  opinion  was  fixed,  and  ad- 
mitted of  no  conflicting  evidence.  If,then,  Mr.  Burrwould 
be  stripped  of  one  half  of  his  defense  by  the  admission  of 
these  gentlemen  on  his  jury,  Callender  was  stripped  of 
much  more  than  half  of  his  defense  by  the  reception  of 
Basset  on  his. 

I  said,  when  I  first  rose,  that  the  kind  of  jury  which 
Mr.  Martin  contended  for,  could  not  exist.  Necessity 
has  given  the  law  in  other  cases  ;  and  whenever  that 
necessity  appears,  submission  to  it  must  invariably  fol- 
low. Such  a  jury  could  not  exist,  unless  it  had  fallen 
from  heaven.  But  this  is  not  the  only  case  in  which  a  pure- 
ly impartial  jury  could  not  possibly  be  obtained,  from  the 
very  nature  of  things.  Consider  the  English  rebellions 
of  the  year  1715  and  1745.  Recollect  when  the  great 
national  question  between  the  Pretender  and  the  house 
of  Hanover,  which  occupied  the  throne,  was  so  warmly 
agitated.  The  people  took  up  different  sides  of  the 
question,  not  only  with  zeal  and  ardor,  but  even  with 
phrenzy.  Their  gazettes  and  magazines  were  filled  with 
it.  Every  man  in  the  nation  was  animated  with  the  ut- 
most enthusiasm,  which  carried  him  beyond  the  bounds 
of  reason  and  propriety.  They  not  only  wrote,  but  they 
fought  for  it :  and  that  in  so  little  a  kingdom,  the 
very  clang  and  din  of  the  battle  of  Culloden  was  heard 
in  every  part  of  it.  Was  this  a  case  in  which  an  impar- 
tial jury  could  have  been  expected?  Could  they  find 
any  who  had  not  formed  an  opinion  on  the  cause  of  the 
Pretender,  and  on  the  nature  of  the  rebellion?  Every 
man  in  the  kingdom  had  made  up  his  mind  on  the  great 
facts;  yet  the  rebels  of  the  years  1715  and  1745  were 
tried  by  parties  who  knew  these  facts,  and  hanged. 
Those  of  the  latter  were  tried,  perhaps,  by  jurors  who 
had  met  and  fought  them  on  the  plains  of  Culloden.  Do 
you  believe  that  the  question,  whether  they  believed  that 
the  pretender  had  an  intention  to  seize  the  throne,  was 
put  to  those  jurors  who  tried  his  adherents?  His  inten- 
tion, and  that  of  his  followers,  were  facts  of  public-noto- 
riety.  The  rule  of  Mr.  Martin  is  a  good  rule,  as  it  ex- 


448  TRIAL    OF  AARON  BURR. 

Ists  in  the  mind  of  a  good  man,  or  perfect  philosopher. 
It  is  a  good  rule  for  Utopia,  or  for  Arabia  Happy,  or  as 
a,  standard  of  theoretic  perfection.  But  on  those  who 
have  human  passions,  it  is  in  vain  to  expect  it  to  operate. 
Look  at  the  trials  in  the  year  1794  of  Tooke,  Hardy, 
Thelvvall,  and  others.  Were  the  jurors  who  tried  these 
men  entirely  without  impressions?  Did  the  causes  ot 
their  prosecution  produce  no  excitement  ?  Look  at  the 
trials  in  Ireland  of  men  who  fought  the  battle  of  Wex- 
ford.  Were  they  tried  by  men  who  were  entirely  indif- 
ferent, who  had  received  no  impressions  from  the  great 
events  in  their  country.  Had  these  created  no  interest, 
no  feeling  ?  Thus  it  was  in  the  case  of  Hamilton  Rowan  : 
men  who  were  at  the  very  focus  of  public  illumination  on 
that  occasion,  were  to  sit  on  his  trial !  Could  such  men 
have  come  into  the  jury-box,  as  if  they  had  never  seen  the 
books,  nor  heard  of  the  causes  on  which  the  prosecutions 
were  founded,  as  if  they  had  come  from  another  planet? 
No  such  thing  could  be  rationally  expected.  You  will 
find  that  the  principle,  laid  down  by  Hawkins,  is  correct : 
"  That  if  a  juror  have  declared  beforehand  that  the  party 
is  guilty,  or  will  be  hanged,  or  the  like,  and  made  such  a 
declaration  from  his  knowledge  of  the  cause,  and  not  out 
of  any  ill-will  to  the  party,  it  is  no  cause  of  challenge." 
It  is  justified  by  the  reason  and  experience  of  mankind. 
Impressions  from  the  public  prints,  unconnected  with 
any  ill-will  to  the  accused,  can  not  therefore  be  a  cause 
of  challenge. 

From  the  plains  of  Culloden  and  Wexford,  let  us  come 
to  our  own  country.  There  have  been  no  battles  in  this 
country  lately  ;  but  there  has  been  a  subject  which  has 
agitated  every  part  of  the  country,  in  which  every  citizen 
must  have  felt  a  warm  interest.  A  man,  heretofore  dis- 
tinguished, has  been  charged  in  all  the  public  prints  with  a 
crime  so  destructive  of  the  peace  and  happiness  of  this 
country,  that  he  who  could  peruse  these  prints  for  the 
last  twelve  months  with  adamantine  indifference  ;  he  who 
could  read  the  affidavits  of  Generals  Eaton  and  Wilkin- 
son without  some  emotion,  can  not  be  a  man.  No  man 
could  see  these  things  without  feeling.  I  put  it  to  your 
hearts  to  determine  whether  any  man  who  has  a  soul 
that  could  grace  the  bosom  of  a  man,  could  do  it.  There 


IMPANELING    THE  JURY.  449 

is  not  that  base  frigidity  in  the  American  character  which 
is  insusceptible  of  impressions  on  subjects  of  great  mo- 
ment. Look  at  one  of  the  very  jurors  whom  the  accused 
has  selected.  No  man  acknowledges  with  more  pleasure 
than  I  do  the  correct  conduct  of  that  gentleman.  I  have 
long  known  and  respected  him.  No  man  can  be  more 
conscientious.  Yet  he  declares  that,  from  the  statements 
in  the  newspapers,  he  has  some  impressions  of  the  views 
of  the  accused.  Could  less  have  been  expected  from  any 
man  ?  This  was  the  source  from  whence  his  impressions 
were  derived  ;  and  not  hostility  to  the  person  of  the  pris- 
oner himself. 

In  England,  we  see  from  the  authority  of  Hawkins, 
that  if  a  person  summoned  as  a  juror,  have  declared 
that  the  party  accused  is  guilty,  or  will  be  hanged,  and 
made  this  declaration  from  his  knowledge  of  the  cause, 
and  not  from  ill-will  to  the  party,  it  is- no  cause  of  chal- 
lenge ;  and  if  he  have  found  another  man  guilty  under 
the  same  indictment,  it  is  no  cause  of  challenge.  As 
this  is  the  law,  how  can  it  be  a  cause  of  challenge,  that 
these  jurymen  have  received  some  impressions  from  the 
public  prints  ?  It  may  perhaps  be  said,  that  a  juror  who* 
had  found  another  man  guilty  under  the  same-indictment, 
must  have  made  up  his  mind  on  the  whole  evidence  in  the 
cause;  and  that  therefore  he  ought  not  to  be  challenged 
by  another  party  prosecuted  in  that  indictment.  Noth- 
ing can  be  more  manifest  than  the  absurdity  of  this 
reasoning.  It  amounts  to  this:  He  is  a  good  juryman, 
if  he  have  seen  and  heard  the  whole  evidence  ;  but  if  he 
have  only  heard  some  slight  circumstances,  a  small  por- 
tion of  the  evidence,  then  he  can  not  be  admitted  as'a 
juryman  !  Because  his  mind  is  locked  up  forever  by  his 
former  verdict,  he  is  a  good  juror ;  but  a  mere  fleeting 
impression  disqualifies  him  entirely  !  This,  surely,  is  not 
even  the  semblance  of  an  argument.  Take  the  other 
ground  mentioned  by  Hawkins,  that  "  it  is  no  cause  of 
challenge  to  a  juryman,  that  he  had  declared  from  his 
own  knowledge,  and  not  from  ill-will  to  the  prisoner, 
that  he  is  guilty,  or  will  be  hanged,"  and  apply  it  to  this 
case.  To  have  made  such  a  declaration  from  his  own 
knowledge,  means,  that  he  made  it  on  the  evidence 
of  his  own  senses.  As  in  the  case  of  murder,  suppose 
28 


450  TRIAL   OF  AARON   BURR. 

a  juryman  had  by  accident  seen  the  person  accused 
actually  commit  the  murder,  but  has  no  ill-will  against 
him,  he  is  a  good  juror ;  because  it  is  impossible  to 
change  his  opinion.  But  if  a  gentleman  of  respecta- 
bility will  say,  that  he  has  a  slight  impression  on  his 
mind  from  mere  reports,  or  newspaper  statements,  he  is 
not  a  good  juror  at  all.  Because  a  man's  mind  is  locked 
up  against  evidence  and  argument  beyond  the  possibility 
of  persuasion  he  is  an  impartial  juryman:  yet  he  whose 
mind  has  only  received  a  trivial  expression,  and  is  open 
to  evidence  and  conviction,  must  be  rejected  as  partial 
and  improper.  This  is  the  substance  of  their  argument. 

I  trust  that  whether  you  take  the  authority  of  this 
court,  or  the  practice  in  England  into,  consideration,  you 
will  find  that  these  gentlemen,  having  no  ill-will  against 
the  accused,  and  but  a  slight  impression  relating  to  the 
cause,  and  not  to  him  personally,  ought  not  to  be  rejected. 
They  have  stated  themselves,  that  they  had  but  a  slight 
impression  o-n  their  minds.  If  the  question,  therefore, 
depended  on  the  depth  of  their  impressions,  these  gen- 
tlemen could  not  be  excluded.  When  a  man,  who  has 
read  some  reports  in  the  newspapers,  professes  himself 
ready  to  hear  further  evidence,  his  mind  is  open  to  con- 
viction, he  is  a  fair  juror,  and  can  not  be  challenged  as 
partial  :  for  as  to  a  slight  impression,  it  was  impossible 
even  to  hear  of  treason  against  their  country,  without 
some  emotion.  I  trust,  therefore,  that  these  gentleman 
will  be  considered  as  proper  jurors. 

Mr.  Wickham  spoke  to  the  following  effect :  I  will 
endeavor  to  show  that  the  observations  of  the  gentle- 
men on  the  other  side,  and  their  construction  of  the  law, 
are  incorrect.  Their  whole  arguments  rest  on  the  basis 
of  necessity;  but  the  gentleman  last  up  has  placed  it  in 
a  greater  variety  of  views.  I  heard  him  with  great 
pleasure.  His  eloquence,  which  is  at  all  times  pleasing, 
was  at  this  time  particularly  interesting;  but  he  used  so 
many  tropes,  and  scattered  so  many  flowers,  that  he  re- 
minded me  of  a  Roman  epigram  on  a  lady,  who  was  so 
completely  enveloped  in  decorations,  that  she  was  the 
smallest  part  of  herself.  It  was  precisely  so  with  the 
gentleman's  argument.  It  was  so  perfectly  ornamented 
and  covered  with  figures  and  graces,  that  it  constituted 


2NPANELING  THE  JURY.  451 

the  least  part  of  itself;  and  it  was  only  by  lifting  a 
flounce  here,  and  a  furbelow  there,  that  you  could  dis- 
cover the  argument.  What  does  he  state?  That  from 
necessity,  and  the  nature  of  things,  there  can  be  no  jury 
obtained  without  some  impressions.  How  does  he 
prove  it  ?  The  gentleman  has  hurried  us  to  England 
and  the  battle  of  Culloden,  with  as  much  ease  as  if  he 
had  waved  the  wand  of  a  magician,  and  told  us,  that  the 
din  of  arms  wa3  so  loud,  that  it  might  be  heard  six  or 
seven  hundred  miles  !  He  has  compared  the  judicial  de- 
cisions in  that  country,  at  the  period  of  the  rebellion,  to 
the  case  now  before  this  court,  without  having  attended 
to  the  natural  and  manifest  distinction  between  them. 
It  was  clear  to  every  man  in  England,  that  there  was  a 
rebellion  in  the  country.  An  army  traversing  the  coun- 
try in  military  force  and  array,  places  taken,  and  battles 
fought.  Lords  Balmerino,  Kilmarnock,  and  Cromartie, 
and  many  other  men  of  distinction,  were  known  to  be 
engaged  in  the  cause  of  the  Pretender,  and  concerned  in 
those  transactions.  Every  man  in  the  country  could 
reason  upon  the  case ;  the  basis  of  his  decision  was  a 
chain  of  historical  facts,  known  and  recorded',  which 
could  neither  be  distorted  by  prejudice,  nor  destroyed 
by  falsehood.  How  did  the  courts  decide  that  there 
was  a  jury  to  be  found  in  England  which  could  try  the 
prisoners  impartially  ?  The  existence  of  the  rebellion 
was  an  historical  fact  known  to  every  man  before  the 
trials;  but  whether  the  particular  individuals  accused 
were  actively  concerned  in  it  or  not,  depended  on  the 
evidence  against  each  of  them.  The  case  now  before 
the  court  would  have  been  precisely  similar,  if  it  had 
been  founded  on  historical  facts.  If  it  had  been  estab- 
lished that  Mr.  Burr,  with  twenty  or  thirty  thousand 
men,  and  a  number  of  gun-boats,  had  descended  the 
Ohio;  that  he  had  taken  New  Orleans,  had  fought 
several  battles  with  General  Wilkinson,  and  had  been 
brought  before  this  court  for  trial,  the  jury  would  have 
to  decide,  not  upon  their  own  prejudices,  but  on  histori- 
cal facts,  and  the  evidence  against  each  person  accused. 
But  where  are  the  established  facts  in  this  case  ?  The 
president  has  declared  that  there  is  no  sort  of  doubt  of 
his  guilt.  It  is  not  pretended  that  he  could  know  the 


452  TRIAL  OF  AARON  BURR. 

facts  himself,  and  he  is  liable  to  the  deception  of  others. 
Is  his  word  to  be  taken  as  evidence  in  a  court  of  justice, 
and  that  adduced  not  even  on  oath  ?  But  General  Wil- 
kinson has  said  so  also.  But  his  credibility  may  be  here- 
after impeached  ;  he  is  only  a  witness  to  prove  certain 
facts;  but  does  he  say  that  Mr.  Burr  is  guilty  of  trea- 
son? The  supreme  court  has  decided  that  his  evidence 
was  not  relative  to  the  charge  of  treason.  This  whole 
tale,  then,  is  referred  to  the  affidavit  of  General  Eaton, 
an  ex parte  witness.  It  rests  on  that  alone;  of  which  I 
will  say,  though  we  may  not  be  disposed  to  assert,  that 
it  is  untrue, -yet  that  it  must  be  admitted  that  his  tale  is 
marvelous,  and  not  reconcilable  to  itself.  Is  this  accu- 
sation, then,  founded  on  historical  facts?  Is  it  apiece 
of  history  that  is  known  to  every  man  in  the  country? 
This  story,  which  has  excited  so  much  alarm  and  in- 
terest in  every  part  of  the  United  States,  is  reduced  to 
the  testimony  of  a  single  witness,  who  tells  a  most  won- 
derful tale.  How,  then,  can  he  draw  a  comparison  be- 
tween this  case  and  that  of  the  rebellions  in  England? 
The  gentleman  certainly  did  not  consider  the  cases  well, 
or  he  would  not  have  thought  of  such  a  parallel.  The 
battle  of  Culloden,  for  example,  was  a  matter  of  public 
and  universal  notoriety  ;  it  was  known  to  every  man, 
woman,  and  child  in  England  ;  and  it  could  have  formed 
no  part  of  the  inquiry,  on  the  trial  of  the  rebels,  whether 
such  a  battle  had  been  fought  or  not  ? 

There  is  not  a  single  deposition  to  prove  that  treason 
has  been  committed.  The  president's  letter  though  it 
confidently  ascribes  guilt  to  Mr.  Burr,  does  not  say  that 
he  was  guilty  of  treason.  If  one  of  these  jurymen  be  not 
disqualified  by  a  preconceived  opinion  of  Mr.  Burr's  trea- 
sonable intentions,  the  rule  will  apply  to  the  whole  jury; 
and  if  one  of  those  gentlemen  who  think  he  had  treason- 
able designs,  can  be  sworn  to  try  him,  twelve  of  them 
can.  What,  then,  would  be  our  situation  as  his  counsel? 
Twelve  jurors  are  impaneled,  all  of  whom  believe  him 
guilty  of  treasonable  intentions.  The  crime  of  treason 
consists  of  intention  and  act.  In  what  attitude  should 
we  stand  before  such  a  jury,  to  vindicate  the  innocence 
of  Mr.  Burr's  intentions?  What  course  could  we  take  ? 
Their  minds  would  be  satisfied  already  as  to  his  inten- 


IMPANELING  THE  JURY.  453 

tions;  it  would  be  in  vain  to  urge  evidence  or  authorities 
to  show  that  he  had  no  treasonable  designs.  Would  we 
attempt  to  make  an  impression  on  such  marble  ?  We 
might  as  well  abandon  at  once  the  cause  of  our  client. 
The  jury  would  be  made  of  such  stubborn  and  impenetrable 
materials,  that  he  would  be  sure  to  be  sacrificed.  As  an 
aggravation  of  this  evil,  it  is  to  be  observed  that  their 
belief  respecting  Mr.  Burr's  intentions,  has  an  influence 
and  direct  operation  on  the  question,  whether  an  act 
have  been  perpetrated  or  not.  They  will  listen  more 
attentively  to  evidence  that  will  confirm,  than  to  testi- 
mony that  will  contradict  it.  Suppose  there  are  two 
witnesses,  one  who  thinks  there  was  an  overt  act  com- 
mitted, and  another  who  thinks  there  was  not ;  the  jury- 
man who  has  made  up  his  mind  as  to  the  intentions  of 
the  accused,  will  very  probably  believe  the  testimony 
which  maintains  the  intention,  and  will  not  believe  the 
man  who  swears  to  the  fact  in  opposition  to  the  inten- 
tion ;  because  the  act  is  made  more  probable  by  the  in- 
tention, which  is  the  first  step  towards  it :  but  a  juror 
who  had  not  believed  that  the  accused  had  criminal 
designs,  would  very  probably  not  believe  either  of  the 
witnesses,  as  their  testimony  was  contradictory,  or  might 
believe  him  who  swore  that  there  was  no  overt  act.  I 
insist  that  twelve  jurors,  with  impressions  fixed  as  to  the 
intention,  though  an  honest,  could  not  be  an  impartial 
jury  ;  because  the  intention  has  a  direct  operation,  not 
on  a  part  only,  but  on  the  whole  cause  ;  it  bears  directly 
on  every  point  of  the  cause.  That  juror  must  be  more 
than  man,  who,  believing  the  accused  guilty  as  to 
intention,  will  be  able  to  stop  at  the  point  of  sober 
investigation,  and  not  permit  his  judgment  to  be  in- 
fluenced by  it  with  respect  to  the  commission  of  an  overt 
act.  The  man  whose  belief  is  made  up  as  to  the  inten- 
tions of  Mr.  Burr,  can  not  be  said  to  be  impartial  on  any 
point  in  the  cause.  Let  us  suppose  a  very  possible  case  : 
that  six  jurors  are  impaneled,  who  say  that  they  be- 
lieve he  had  treasonable  intentions,  but  they  know  noth- 
ing of  an  overt  act ;  and  six  more  are  called  up  and  sworn, 
who  admit  that  they  have  an  impression  as  to  an  overt 
act  having  been  committed,  but  as  to  the  intention  know 
nothing.  Six  have  taken  up  one  opinion  and  six  another. 


454  TRIAL  OF  AARON  B  URR. 

Their  opinion,  on  the  whole,  is  unfavorable  to  the  pris- 
oner. How  could  his  counsel  address  them  on  either  of 
those  points?  If  they  address  them  on  the  intention, 
six  of  them  are  adamant  on  that  point ;  and  if  they  ad- 
dress them  on  the  other  point,  it  will  be  in  vain,  because 
six  of  them  are  equally  obdurate.  On  either  side  they 
would  meet  with  prejudice  and  resistance.  It  would  be 
like  the  case  mentioned  in  Tristram  Shandy,  of  the  ab- 
bess and  nun,  where  it  was  necessary  to  pronounce  a 
certain  criminal  word,  to  make  their  mules  move  with 
their  carriage  ;  it  would  have  been  a  sin  for  either  of 
them  to  utter  the  entire  word,  but  they  divided  it  into 
two  parts;  one  articulated  one  part  and  the  other  the 
other,  and  thus  effected  their  purpose,  and  avoided  all 
the  sin  of  the  expression.  One  half  of  the  jury  think 
the  intention  existed,  the  other  think  the  fact  was  per- 
petrated ;  an'd  by  dividing  the  transgression  between 
them,  and  compromising  the  intention  and  act,  they 
'may  find  a  verdict  of  guilty.  Those  who  have  made  up 
their  minds  as  to  the  design,  will  readily  concur  with 
those  who  think  that  the  overt  act  is  unquestionable  ; 
and  those  who  think  the  overt  act  notorious,  will  require 
but  little  persuasion  to  believe  that  the  intent  was  crim- 
inal. But  on  many  occasions,  there  is  no  doubt  but  the 
whole  crime  consists  in  the  intention  ;  and  the  whole 
inquiry  is,  whether  there  were  a  criminal  intent  or 
not? 

I  will  now  proceed  to  answer  the  arguments  of  coun- 
sel in  their  order.  Mr.  Mac  Rae  says  that  the  standard 
with  respect  to  the  competency  of  jurors,  depends  on 
whether  they  have  a  personal  prejudice  or  ill-will  against 
the  accused  or  not?  What  is  meant  by  the  word  per- 
sonal ?  Is  it  a  dislike  to  the  appearance,  the  counten- 
ance, or  features  of  a  man  ?  If  it  depended  on  this,  Mr. 
Burr  would  stand  a  better  chance  than  most  of  his  coun- 
sel ;  perhaps  than  most  men.  But  if  you  believe  him 
guilty  of  a  crime,  is  it  not  prejudice  against  him  ?  Is  it 
not  prejudice  to  entertain  such  a  belief  against  any  man? 
The  usual  ground  of  prejudice  against  a  man  is,  that  he 
is  guilty  of  criminal  conduct. 

But  it  is  said  by  Mr.  Mac  Rae,  that  it  would  be  nec- 
essary, in  order  to  exclude  them  as  jurors,  that  they 


IMPANELING  THE  JURY.  455 

should  have  said  that  they  thought  Mr.  Burr  had  been 
guilty  of  treason  in  connection  with  Blannerhasset. 
We  have  nothing  to  do  with  Blannerhasset.  They 
are  not  joined  together  in  the  indictment.  The  com- 
plaint is  not  now  before  the  court.  Some  of  these  gen- 
tlemen say  that  they  believe  they  intended  to  take  New 
Orleans.  It  should  have  been  a  joint  indictment  against 
them  ;  and  they  could  then  know  the  charge  in  the  in- 
dictment, and  meet  it  with  the  necessary  defense  ;  but 
there  is  nothing  in  it  about  New  Orleans,  and  joint  trea- 
son with  Blannerhasset. 

But  u  Callender's  case  is  directly  in  point,  where  Mr. 
Basset  was  determined  to  be  a  proper  juryman."  What 
was  it  ?  Did  he  pronounce  any  opinion  on  the  inten- 
tion of  Callender?  He  said  the  book  was  a  libel.  That 
was  not  an  opinion,  but  a  fact.  But  did  he  say  that 
Callender  was  the  author  or  publisher  of  it  ?  Suppose 
he  had  been  called  on  for  a  definition  of  sedition. 
What  would  he  have  said  ?  Did  he  say  that  he  had 
made  up  his  mind  that  Callender  was  guilty  of  intending 
to  publish  a  seditious  libel?  Callender  was  defended  by 
several  learned  counsel  of  this  bar.  Did  they  attempt 
to  deny  that  it  was  a  libel  ?  Did  Mr.  Randolph,  or 
the  other  gentlemen  who  managed  the  impeachment 
of  Judge  Chase,  in  the  senate  of  the  United  States, 
deny  that  it  was  a  libel?  It  ought  also  to  be  recol- 
lected that  thisj  very  senate  of  the  United  States  de- 
cided by  a  majority  of  eighteen  against  sixteen,  that  the 
decision  of  Judge  Chase,  in  not  rejecting  Mr.  Basset  as 
a  juror,  because  he  said  that  he  had  made  up  his  mind 
from  the  extracts  said  to  be  taken  from  the  book,  that 
it  was  a  libel,  was  illegal.  Sixteen,  out  of  thirty-four, 
thought  it  correct,  and  eighteen  thought  it  corrupt.* 
This  was  the  case,  if  I  recollect  right.  I  then  thought, 
and  still  think,  the  opinion  which  he  gave  was  law.  It 
was  palpable  and  manifest  to  every  person  that  the  book 
was  a  libel;  and  the  declaration  of  that  fact  is  not  like 
imputing  a  criminal  design  to  the  party  accused  ;  and, 

*  This  was  immediately  discovered  to  be  a  mistake.  The  second  ar- 
ticle of  the  impeachment  was  for  overruling  Mr.  Basset's  objection. 
On  this  article  ten  senators  only  voted  guilty,  and  twenty-four  not 

guilty. 


456  TRIAL  OF  AARON  BURR. 

therefore,  the  admission  of  Mr.  Basset  as  a  juror,  though 
correct  and  proper,  ought  not  to  be  considerad  as  a  pre- 
cedent for  the  admission  of  these  gentlemen  on  this  jury. 
If  these  gentlemen  came  forward  and  gave  a  correct  de- 
finition of  treason,  they  would  be  improper  jurymen. 
They  ascribe  such  intentions  to  the  accused  as  may  sup- 
port the  charge  of  treason. 

But  these  jurymen  say  that  they  think  they  can  give 
a  fair  verdict.  I  mean  no  reflection  on  the  gentlemen, 
by  saying  that  they  may  be  mistaken.  I  am  cofident 
they  have  no  intentional  prejudice.  But  what  is  preju- 
dice? Do  not  most  men  believe  their  own  opinions  to 
be  correct?  Is  it  easy  for  every  man  to  discern  and  re- 
tract his  erroneous  opinions?  If  a  man  were  to  go  so 
far  as  to  say  that  he  could  conquer  prejudice,  still  it 
ought  only  to  be  admitted  that  he  believes  so  ;  the  frailty 
of  human  nature  forbids  complete  confidence  in  such 
cases;  his  belief  ought  not  to  be  depended  upon,  how- 
ever respectable  he  may  be. 

But  Mr.  Hay  has  given  us  a  definition  of  an  impartial 
juryman,  which  neither  Mr.  Martin  nor  I  would  ever 
have  thought  of.  What  was  it?  That  the  common  sen- 
timents and  feelings  of  a  majority  of  the  people  of  any 
country,  form  the  criterion  of  impartiality  and  truth  ! 
Take  this  position  to  be  correct,  let  this  new  principle  be 
adopted,  and  the  study  of  the  law  will  be  rendered  very 
easy  and  short;  and  to  some  gentleme|i,  very  pleasant. 
It  would  save  a  great  deal  of  time  and  trouble.  A  stu- 
dent, instead  of  poring  over  the  black-letter  in  his  own 
closet,  and  wearying  his  faculties  for  years  in  search  of 
principles  and  scientific  knowledge,  need  only  go  about 
to  barbacues,  horse-races,  cock-fighting,  and  other 
public  meetings  and  places  of  amusement,  to  learn  the 
common  sense  of  mankind  !  A  lawyer  would  consult 
his  law  books,  but  Mr.  Hay  would  go  about  collecting 
the  sense  of  the  nation.  Mr.  Wirt  has  given  us  another 
and  a  better  rule,  to  which  most  men  would  give  the 
preference.  He  has  told  us,  that  the  principles  of  law 
ought  to  be  certain,  and  not  continually  floating  on  the 
ocean  of  uncertainty.  But  he  is  contradicted  by  Mr. 
Hay.  He  advises  us  to  follow  the  principles  of  law,  but 
Mr.  Hay  prefers  the  popular  opinion  ;  the  sentiments  of 


IMPANELING    THE  JURY.  457 

a  majority  of  the  people  to  be  ascertained,  I  presume,  by 
officers  appointed  to  collect  them  in  every  district. 

Mr.  Hay  denied  that  he  expressed  such  a  sentiment,  and 
insisted  that  his  words  and  meaning  were  misrepresented. 

Mr.  Wickliam  proceeded.  The  gentleman  did  say,  that 
an  impartial  juror  was  one  who  had  the  common  senti- 
ments of  the  mass  or  majority  of  the  people.  Compare 
this  sentiment  with  those  of  Hale,  Hume,  Robinson,  and 
other  eminent  writers,  and  see  how  very  different  they  are. 
I  understood  him  distinctly,  that  impartiality  in  a  juror, 
depended  on  his  concurrence  vyith  the  public  senti- 
ments. That  is  the  true  meaning  of  what  he  said.  I 
follow  it  up  to  its  consequences,  and  if  the  result  be  ab- 
surd, he  is  not,  for  that  reason,  at  liberty  to  deny  his  po- 
sition. Is  every  man  in  the  community  to  be  consulted  ? 
Is  there  then  to  be  an  "  appel  nominel,"  as  there  was 
in  France,  when  the  French  people  were  asked,  "  Shall 
Napoleon  be  emperor  of  the  French?"  The  public 
opinion  can  not  be  truely  ascertained.  I  do  not  believe 
that  the  opinion  of  the  jurymen,  whose  case  is  under 
consideration,  is  this  public  opinion  which  is  so  much  re- 
ferred to  ;  but  if  public  opinion,  and  sentiment,  and  feel- 
ing, were  to  be  resorted  to  as  the  true  test  of  .impartial- 
ity, what  would  he  do  with  the  passions  of  the  turbulent, 
the  lawless,  and  the  violent?  Has  he  any  motive  for  es- 
tablishing this  public  opinion  as  a  rule  of  justice  and  fair- 
ness? Has  he  been  scattering  and  fomenting  these  pop- 
ular prejudices,  and  spreading  declarations  of  the  guilt 
of  the  accused  all  over  the  country  ?  He  has  repeatedly 
declared  that  he  has  no  doubt  of  his  crime.  I  hope  that 
there  is  no  concebtion  between  his  criterion  of  impartial- 
ity, and  his  frequent  declarations  of  Mr.  Burr's  guilt. 
Mr.  Hay  agrees,  that  if  they  attempted  to  make  prose- 
lytes, it  would  justify  their  rejection.  Several  of  these 
jurymen  did  acknowledge  that  they  had  publicly  argued 
to  inculcate  a  belief  of  Mr.  Burr's  guilty  designs,  and 
justified  the  measures  adopted  by  the  government 
against  him.  On  the  gentleman's  own  admission,  there- 
fore, they  are  not  proper  jurors.  I  mean  no  imputation 
against  these  gentlemen  ;  they  had  a  conviction  on  their 
own  minds  of  his  evil  designs,  and  fchey  wished  to  com- 
munica  e  it  to  others  ;  they  are  to  be  respected  because 


45  8  TRIAL   OF    AARON  BURR. 

they  acted  under  a  conviction  of  the  truth.  But  this  argu- 
ment proves  too  much;  that  if  every  one  of  these  jury- 
men had  declared  that  Mr.  Burr  was  guilty  of  an  act  of 
treason,  it  would  make  no  difference,  but  they  would  all 
be  impartial  jurymen  ;  because  it  happened  to  agree  with 
the  public  opinion.  It  would  prove  everything.  It 
might  prove,  that  the  sentiments  of  every  man  who  did 
not  conform  to  the  public  opinion,  when  it  was  under  a 
different  direction  from  what  it  is  at  present,  were  then 
wrong;  and  that  those  who  do  not  now  subscribe  to 
what  is  called  public  opinion,  are  as  culpable  as  those  in 
the  minority  were  formerly;  so  that  what  is  right  one 
day,  may  be  wrong  another. 

The  gentleman  has  candidly  informed  us,  that  the 
country  is  divided  into  two  classes  ;  and  that  every  man 
has  taken  his  side  of  this  question.  I  should  hope  that 
the  gentleman's  position  was  not  correct,  at  least,  not  in- 
variably. If  it  were  so,  it  would  be  unfavorable  to  truth 
and  justice.  The  majority  always  possess  sovereign 
power  in  the  United  States;  but  the  majority  change. 
He  who  has  had  the  happiness  of  thinking  and  acting 
formerly  with  the  great  majority  of  the  people  of  the 
United  States,  finds  himself  now  decidedly  opposed  by 
such  a  majority.  The  public  opinion  is  continually  fluc- 
tuating; and  what  was  law  under  the  administration  of 
John  Adams,  is  not  law  under  the  administration  of 
Thomas  Jefferson.  What  was  public  opinion  then  is 
not  public  opinion  now.  In  fact,  it  is  impossible  to  know 
what  public  opinion  is.  So  that,  according  to  the  gen- 
tleman's doctrine,  the  impartiality  of  a  juror,  instead  of 
being  founded  on  correct,  immutable,  and  permanent  prin- 
ciples, would  be  continually  floating  on  the  waves  of  un- 
certainty ;  an  evil  which  is  so  much  and  so  justly  depre- 
cated by  his  colleague. 

But  it  is  said,  on  the  authority  of  Hawkins,  that  a 
man  may  be  a  proper  juror  to  try  a  person  accused,  al- 
though he  knows  the  fact  on  which  the  prosecution  is 
founded.  Does  any  one  of  these  gentlemen  say  that  he 
knows  the  fact?  Not  one  of  them  pretends  to  such 
knowledge.  What,  then,  can  be  said  of  an  authority  that 
has  no  application  ?~  It  is  not  necessary  to  acknowledge 
or  deny  the  validity  of  this  authority. 


IMPANELING    THE  JURY.  459 

But  the  gentleman  says,  "  that  it  is  impracticable,  or 
something  approaching  an  impossibility,  to  obtain  an 
impartial  jury,  if  the  objection  against  these  jurymen 
shall  prevail.  We  deny  this  impossibility  ;  we  have  al- 
ready obtained  four  jurors,  and  have  no  doubt  the  rest 
can  easily  be  got.  I  will  say  nothing  of  the  panel  being 
composed  of  men  of  whom  so  many  had  made  up  their 
minds.  I  have  no  doubt  that  it  was  accidental,  and  that 
the  marshal  intended  to  discharge  his  duty  with  fidelity 
and  propriety. 

Mr.  Wirt  says  that  these  elementary  writers,  Hale, 
Hawkins,  Reeves,  and  others,  are  not  to  be  regarded  ; 
that  they  are  not  always  the  test  of  truth.  It  may  be 
admitted  that  they  are  not  uniformly  so,  but  it  is  cer- 
tain that  they  are,  and  ought  to  be  generally  so  consid- 
ered. Some  of  these  elementary  authors,  such  as  Lord 
Coke,  are  of  inestimable  value. 

As  to  the  variance  stated  by  Mr.  Wirt,  between  one  of 
the  elementary  principles  of  Reeves  and  a  case  deter- 
mined by  Chief  Justice  Eyre,  the  case  of  Home  Tooke  a 
reference  to  the  report  of  that  trial  will  show  that  that 
case  had  not  been  accurately  stated  to  this  court.  I  have 
too  high  a  respect  for  Mr.  Wirt,  to  say  that  he  has  will- 
fully misrepresented  the  case  ;  but  he  has  certainly  mis- 
understood the  opinion  of  the  court.  Thompson,  the 
juryman,  was  not  in  court.  He  had  exercised  the  dis- 
cretion of  absenting  himself;  and  the  excuse  made  for 
him  was,  that  he  had  been  too  long  and  too  intimately 
acquainted  with  the  prisoner.  Was  it  a  question,  whether 
he  were  to  be  received  as  a  juror  or  not?  Was  it  a 
question  put  to  the  prisoner  in  court,  "  Do  you  like 
this  man  or  not?"  It  was  not.  The  chief  justice  said 
that  "it  was  no  excuse."  No  excuse  for  what?  .  Not 
from  serving  on  the  jury,  but  for  not  appearing  at  all  in 
court.  The  expression  of  Chief  Justice  Eyre  was  very 
mild,  in  answer  to  the  apology  made  for  the  absence  of 
the  witness. 

Mr.  Wirt  here  interrupted  Mr.  Wickham,  and  said, 
that  he  would  submit  it  to  any  candid  mind,  which  of 
them  gave  the  correct  interpretation  of  the  passage.  He 
read  it  and  made  some  comments  on  it. 

After  some  observations  by  both  gentlemen,  the  Chief 


460  TRIAL   OF  AARON  BURR. 

Justice  said  that  he  had  no  doubt  that  each  of  the  gen- 
tlemen had  stated  what  was  the  conviction  of  his  own 
mind;  but  that  he  thought  it  immaterial  to  the  question 
now  in  discussion,  which  of  them  was  correct. 

Mr.  Wick/iam. — I  shall  make  one  single  remark.  We 
came  here  to  try  Mr.  Burr  on  the  law  and  the  evidence, 
and  not  by  the  public  opinion.  The  life  of  no  man 
would  be  secure,  if  he  were  to  be  tried,  not  according  to  the 
known  rules  and  principles  of  law,  but  the  caprice  and 
levity  of  what  is  deemed  public  opinion.  A  trial  by  a 
prejudiced  jury  would  be  nothing  but  a  mockery.  What 
was  the  meaning  of  the  provision  in'the  constitution,  but 
to  protect  persons  accused  from  the  unjust  violence  of 
popular  opinion  ?  Was  not  the  security  of  innocence 
against  unjust  persecution,  the  object  of  the  amendment 
of  the  constitution?  Was  it  not  known  to  the  framers 
of  our  constitution,  who  had  the  volume  of  human  na- 
ture before  them,  that  the  time  would  at  length  arrive, 
when  some  individual  would  be  held  up  as  a  mark  to 
public  indignation,  and  sacrificed  as  a  victim  to  popular 
phrenzy  and  political  jealousy?  Was  it  not  to  prevent 
this,  that  the  constitution  originally  forbade  the  legisla- 
ture to  change  the  law  of  treason,  by  fixing  it  within  pre- 
cise and  well-defined  limits  ?  Was  it  not  for  this  cause, 
that  a  subsequent  amendment  was  introduced,  declaring 
that  "  in  all  criminal  prosecutions  the  accused  shall  en- 
joy the  right  to  a  speedy  and  public  trial  by  an  impartial 
jury?"  I  contend  that  all  these  salutary  precautions 
have  been  taken  to  guard  against  the  pernicious  effects 
of  this  public  opinion,  and  that  these  gentlemen  being 
prejudiced  against  the  accused,  can  not  be  considered  as 
impartial  within  the  meaning  of  the  constitution. 

Mr.  Randolph,  at  the  request  of  the  court,  read  Judge 
Chase's  answer  to  the  second  article  of  the  impeachment 
against  him,  which  arraigns  his  decision  in  the  case  of 
Basset.  See  appendix  to  the  "  Trial  of  Judge  Chase," 
pages  19,  20,  and  21. 

Mr.  Randopk  then  observed  that  he  had  not  intended 
to  say  anything  on  the  subject  now  discussed,  because 
he  expected  that  objections  would  have  been  made  to  par- 
ticular individuals  only;  but  that  he  had  since  seen,  that 
a.  most  serious  blow  was  meditated  at  the  whole  system 


IMPANELING    THE  JURY.  461 

of  jury  trial.  For,  said  Mr.  Randolph,  whether  accident 
or  Heaven  have  given  us  this  boon,  it  is  our  duty  to  pre- 
serve pure  and  perfect,  and  transmit  unimpaired  to  pos- 
terity, this  only  palladium  against  oppression.  Vain  will 
be  all  this  parade  about  the  trial  by  jury,  if  a  judge  will 
calmly  sit  on  the  bench  and  connive  at  its  violation.  If 
the  courts  do  not  defend  this  sacred  right,  can  it  be  said 
that  any  man's  life  is  safe  ?  The  trial  by  jury  is  not  a 
beneficial  reality,  but  a  mere  fiction  of  law.  Away  with 
justice  ;  away  with  courts;  tell  me  not  that  I  am  safe  in 
my  own  habitation,  if  a  doctrine  like  this  be  to  prevail. 
It  is  a  mockery,  sir,  to  talk  of  the  benefits  of  the  trial  by 
jury,  if  men  whose  minds  are  impressed  with  prejudices 
against  a  person  accused,  shall  decide  his  fate  !  Can  they 
be  impartial,  who  on  a  charge  consisting  of  several  points, 
have  made  up  their  minds  against  him  on  all,  except  a 
little  fragment  ?  Would  it  be  conformable  to  the  equal 
administration  of  justice  to  force  such  a  jury  on  him  ? 

Analogies  have  been  stated  between  other  crimes  and 
the  charge  now  before  the  court.  Other  gentlemen  have 
quoted  the  cases  of  murder  and  burglary.  To  these  I 
shall  add  the  crime  of  uttering  false  money,  knowing  it 
to  be  false.  If  a  man  brought  forward  as  a  juror  on  the 
trial  of  a  person  charged  with  this  offense,  were  to  state 
that  he  knew  not  whether  the  accused  passed  the  money 
or  not,  but  that  he  was  certain  he  must  have  known  it 
to  be  false,  would  he  not  be  rejected  as  an  incompetent 
juror  ? 

But  we  are  told,  on  the  authority  of  Hawkins,  ch. 
43,  sec.  28,  that  by  the  law  of  England  it  has  been  ad- 
judged that  "  if  a  juror  has  declared  beforehand  that  the 
party  is  guilty,  or  will  be  hanged,  or  the  like,  it  is  a  good 
cause  of  challenge  ;  but  if  the  juror  made  this  declara- 
tion from  the  knowledge  of  the  cause,  and  not  out  of 
any  ill-will  to  the  party,  it  is  no  cause  of  challenge  ;  " 
and  in  section  29  "  that  it  hath  been  adjudged  to  be  no 
good  cause  of  challenge,  that  the  juror  hath  found  others 
guilty  on  the  same  indictment." 

Sir,  does  not  this  doctrine  strike  your  mind  with  as- 
tonishment ?  Not  if  you  advert  to  the  reference  made 
in  support  of  it.  He  has  taken  a  posterior  doctrine  in 
preference  to  an  anterior  ;  so  that  it  would  seem  that 


162  TRIAL   OF  AARON  BURR. 

the  latter  had  been  a  revocation  of  the  former.  But  ex- 
amine it.  What  does  he  refer  to?  To  the  Year  Books 
in  the  time  of  Henry  VII.  when  liberty  had  not  been 
established  in  England.  This  very  Hawkins,  in  whose 
bloody  doctrine  confidence  is  now  placed,  instead  of  ad- 
vocating the  more  liberal  doctrines  of  his  own  day,  on 
the  subject  of  juries,  refers  to  the  reign  of  the  Tudors, 
when  not  a  spark  of  liberty  existed.  Were  he  correct 
in  his  assertion  that  this  was  the  law  of  England,  what 
influence  ought  it  to  have  on  the  practice  in  this  coun- 
try, where  the  terms  of  the  constitution  are  so  explicit 
and  imperative,  that  the  accused  shall  enjoy  the  right  to 
a  speedy  and  public  trial  by  an  impartial  jury?  Will 
our  courts  subscribe  to  his  inferences?  He  had  advanced 
a  contrary  doctrine  in  a  preceding  section.  Will  you 
say  that  he  shall  be  justified  in  supporting  and  drawing 
contradictory  principles  and  conclusions?  If  he  main- 
tain positions  which  are  perfectly  inconsistent,  ought 
they  not  to  be  tried  by  a  critical  examination  of  the  au- 
thorities to  which  he  refers?  and  if  the  court  find  that 
his  assertions  are  not  fairly  deducible  from  the  authors 
relied  on,  will  they  not  put  him  aside  and  declare  that 
he  has  no  authority  on  this  point?  If  the  gentleman 
who  quoted  him  had  looked  at  the  2/th  section  of  the 
same  chapter,  he  would  have  found  all  the  doctrines  on 
which  he  commented  so  fully,  entirely  destroyed.  He 
there  says  that  "  this  exception  against  a  juror,  that  he 
hath  found  an  indictment  against  the  party  for  the  same 
cause,  hath  been  adjudged  good ;  not  only  upon  the 
trial  of  such  indictment,  but  also  upon  the  trial  of  an- 
other indictment  or  action,  wherein  the  same  matter  is 
either  in  question,  or  happens  to  be  material,  though 
not  directly  in  issue."  So  that  wherever  it  is  the  same 
question  on  which  he  decided  in  a  former  indictment,  or 
happens  to  be  a  material  point,  he  is  to  be  excluded. 
Is  it  not  all-important  what  the  intention  is?  Is  it  not 
a  material  point  ?  According  to  this  section,  if  it  be  a 
material  point,  he  is  ^o  be  excluded  as  a  juror,  because 
he  had  made  up  his  mind  before  on  the  same  subject.  It 
is  not  merely  that  if  he  decided  on  the  whole,  but  if  he 
have  only  decided  a  material  point  of  the  same  cause, 
he  is  incapacitated  from  serving  as  a  juror. 


IMPANELING    THE  JURY.  463 

Mr.  Wickham  has  anticipated  me  in  showing  the  ef- 
fect of  different  jurors  acting  on  a  conviction  of  different 
parts  of  the  guilt;  that  one  juror  having  formed  his  opin- 
ion on  one  point,  and  another  on  another,  they  may 
compromise,  till  by  mutual  complacency  and  acquies- 
cence they  make  the  accused  the  victim  by  a  verdict  of 
condemnation. 

I  will  make  one  observation  on  the  case  of  Home 
Tooke,  to  show  that  Thompson  did  not  attend  the 
trial,  and  that  the  construction  which  gentlemen  put  on 
it  is  incorrect.  If  Thompson  had  been  present,  the  law 
applying  to  the  case  was  different  from  what  they  con- 
tend it  to  be.  It  is  said  that  a  friendship  or  intimacy 
with  a  party  in  a  suit  is  not  a  cause  of  exception  to  a 
witness,  though  it  always  is  to  a  juror.  Some  books  say 
that  if  a  juror  be  returned  by  a  party,  he  is  disqualified 
from  serving.  The  law  with  respect  to  the  admission  or 
exclusion  of  a  juryman,  must  vary  according  to  the  cir- 
cumstances, and  the  nature  of  the  influence  which  a 
party  in  a  cause  has  over  his  mind.  They  suppose  the 
question  before  the  judge  to  have  been,  "  Shall  he  be  ex- 
cused from  serving  as  a  juror  or  not  ?"  It  was  not  so.  It 
was  whethef  he  should  be  excused  for  non-attendance? 
A  mere  acquaintance  with  another  for  thirty-four  years, 
does  not  exempt  a  man  from  being  on  a  jury  to  try 
that  other ;  but  if  the  intimacy  and  friendship  be  so 
great  as  to  create  an  influence  over  him,  he  would  be 
rejected  of  course. 

I  shall  not  detain  the  court  any  longer,  but  shall  con- 
clude with  a  hope  that  you  will  preserve  the  purity  of 
jury-trial  from  violation  ;  that  you  will  take  more  than 
common  pains  to  preserve  it  free  and  unfettered.  I  ap- 
peal to  the  volume  of  human  nature ;  I  appeal  to  the 
human  heart.  I  could  appeal  to  Mr.  Hay's  great  tri- 
bunal itself,  to  determine  whether  there  ever  were  a  man 
who  could  dispassionately  and  impartially  try  a  cause, 
one  half  of  which  he  had  already  prejudged  ? 

Mr.  Martin  then  observed  that  in  Tooke's  case  no 
challenge  was  stated  to  have  been  made  to  Thompson 
the  juror,  by  either  the  king  or  the  prisoner  ;  and  of  course 
the  question  could  not  have  occurred,  whether  he  should 
be  excused  from  serving  on  the  jury. 


464  TRIAL   OF  AARON  BURR. 

The  Chief  Justice  then  delivered  the  following  op- 
inion : 

The  great  value  of  the  trial  by  jury,  certainly  consists 
in  its  fairness  and  impartiality.  Those  who  most  prize 
the  institution,  prize  it  because  it  furnishes  a  tribunal 
which  maybe  expected  to  be  uninfluenced  by  any  undue 
bias  of  the  mind. 

I  have  always  conceived,  and  still  conceive,  an  impar- 
tial jury  as  required  by  the  common  law,  and  as  secured 
by  the  constitution,  must  be  composed  of  men  who  will 
fairly  hear  the  testomony  which  may  be  offered  to  them, 
and  bring  in  their  verdict  according  to  that  testimony,  and 
according  to  the  law  arising  on  it.  This  is  not  to  be 
expected,  certainly  the  law  does  not  expect  it,  where  the 
jurors,  before  they  hear  the  testimony,  have  deliberately 
formed  and  delivered  an  opinion  that  the  person  whom 
they  are  to  try  is  guilty  or  innocent  of  the  charge  alleged 
against  him. 

The  jury  should  enter  upon  the  trial  with  minds  open 
to  those  impressions  which  the  testimony  and  the  law 
of  the  case  ought  to  make,  not  with  those  preconceived 
opinions  which  will  resist  those  impressions. 

All  the  provisions  of  the  law  are  calculated  to  obtain 
this  end.  Why  is  it  that  the  most  distant  relative  of  a 
party  can  not  serve  upon  his  jury  ?  Certainly  the  single 
circumstance  of  relationship,  taken  in  itself,  unconnected 
with  its  consequences,  would  furnish  no  objection.  The 
real  reason  of  the  rule  is  that  the  law  suspects  the  rela- 
tive of  partiality  ;  suspects  his  mind  to  be  under  a  bias 
which  will  prevent  his  fairly  hearing  and  fairly  deciding 
on  the  testimony  which  may  be  offered  to  him.  The 
end  to  be  obtained  is  an  impartial  jury;  to  secure  this 
end,  a  man  is  prohibited  from  serving  on  it  whose  con- 
nection with  a  party  is  such  as  to  induce  a  suspicion  of 
partiality.  The  relationship  may  be  remote  ;  the  person 
may  never  have  seen  the  party ;  he  may  declare  that  he 
feels  no  prejudice  in  the  case,  and  yet  the  law  cautiously 
incapacitates  him  from  serving  on  the  jury,  because  it 
suspects  prejudice ;  because  in  general  persons  in  a  simi- 
lar situation  would  feel  prejudice. 

It  would  be  strange  if  the  law  were  chargeable  with 
the  inconsistency  of  thus  carefully  protecting  the  end 


IMPANELING    THE  JURY,  465 

from  being  defeated  by  particular  means,  and  leaving  it 
to  be  defeated  by  other  means.  It  would  be  strange  if 
the  law  would  be  so  solicitous  to  secure  a  fair  trial  as  to 
exclude  a  distant  unknown  relative  from  the  jury,  and 
yet  be  totally  regardless  of  those  in  whose  minds  feelings 
existed  much  more  unfavorable  to  an  impartial  decision 
of  the  case. 

It  is  admitted  that  where  there  are  strong  personal 
prejudices,  the  person  entertaining  them  is  incapacitated 
as  a  juror ;  but  it  is  denied  that  fixed  opinions  respect- 
ing his  guilt  constitutes  a  similar  incapacity. 

Why  do  personal  prejudices  constitute  a  just  cause  of 
challenge?  Solely  because  the  individual  who  is  under 
their  influence  is  presumed  to  have  a  bias  on  his  mind 
which  will  prevent  an  impartial  decision  of  the  case 
according  to  the  testimony.  He  may  declare  that  not- 
withstanding these  prejudices  he  is  determined  to  listen 
to  the  evidence  and  be  governed  by  it ;  but  the  law  will 
not  trust  him. 

Is  there  less  reason  to  suspect  him  who  has  prejudged 
the  case,  and  has  deliberately  formed  and  delivered  an 
opinion  upon  it?  Such  a  person  may  believe  that  he  will 
be  regulated  by  testimony,  but  the  law  suspects  him, 
and  certainly  not  without  reason.  He  will  listen  with 
more  favor  to  that  testimony  which  confirms,  than  to 
that  which  would  change  his  opinion;  it  is  not  to  be  ex- 
pected that  he  will  weigh  evidence  or  argument  as  fairly 
as  a  man  whose  judgment  is  not  made  up  in  the  case. 

It  is  for  this  reason  that  a  juror  who  has  once  ren- 
dered a  verdict  in  a  case,  or  who  has  been  sworn  on  a  jury 
which  has  been  divided,  can  not  again  be  sworn  in  the 
same  case.  He  is  not  suspected  of  personal  prejudices, 
but  he  has  formed  and  delivered  an  opinion,  and  is  there- 
fore deemed  unfit  to  be  a  juror  in  the  cause. 

Were  it  possible  to  obtain  a  jury  without  any  prepos- 
sessions whatever,  respecting  the  guilt  or  innocence  of  the 
accused,  it  would  be  extremely  desirable  to  obtain  such 
a  jury;  feut  this  is  perhaps  impossible,  and  therefore  will 
not  be  required.  The  opinion  which  has  been  avowed 
by  the  court  is,  that  light  impressions  which  may  fairly 
be  supposed  to  yield  to  the  testimony  that  may  be 
offered  ;  which  may  leave  the  mind  open  to  a  fair  consid- 
30 


466  TRIAL   OF  AARON  BURR. 

eration  of  that  testimony,  constitute  no  sufficient  objec- 
tion to  a  juror ;  but  that  those  strong  and  deep  impress- 
ions, which  will  close  the  mind  against  the  testimony 
that  may  be  offered  in  opposition  to  them — which  will 
combat  that  testimony  and  resist  its  force,  do  constitute 
a  sufficient  objection  to  him.  Those  who  try  the  impar- 
tiality of  a  juror,  ought  to  test  him  by  this  rule.  They 
ought  to  hear  the  statement  made  by  himself  or  given 
by  others,  and  conscientiously  determine,  according  to 
their  best  judgment,  whether  in  general  men  under  such 
circumstances  ought  to'be  considered  as  capable  of  hear- 
ing fairly,  and  of  deciding  impartially,  on  the  testimony 
which  may  be  offered  to  them  ;  or  as  possessing  minds  in 
a  situation  to  struggle  against  the  conviction  which  that 
testimony  might  be  calculated  to  produce  ?  The  court 
has  considered  those  who  have  deliberately  formed  and 
delivered  an  opinion  on  the  guilt  of  th%e  prisoner,  as  not 
being  in  a  state  of  mind  fairly  to  weigh  the  testimony, 
and  therefore  as  being  disqualified  to  serve  as  jurors  in 
the  case. 

This  much  has  been  said  relative  to  the  opinion  de- 
livered yesterday,  because  the  argument  of  to-day  appears 
to  arraign  that  opinion,  and  because  it  seems  closely  con- 
nected with  the  point  which  is  now  to  be  decided. 

The  question  now  to  be  decided  is,  whether  an  opinion 
formed  and  delivered,  not  upon  the  full  case,  but  upon 
an  essential  part  of  it,  not  that  the  prisoner  is  absolutely 
guilty  of  the  whole  crime  charged  in  the  indictment,  but 
.that  he  is  guilty  in  some  of  those  great  points  which  con- 
stitute it,  do  also  disqualify  a  man  in  the  sense  of  the  law 
and  of  the  constitution  from  being  an  impartial  juror? 
This  question  was  adjourned  yesterday  for  argument,  and 
for  further  consideration. 

It  would  seem  to  the  court  that  to  say  that  any  man  who 
had  formed  an  opinion  on  any  fact  conducive  to  the  final 
decision  of  the  case,  would  therefore  be  considered  as  dis- 
qualified from  serving  on  the  jury,  would  exclude  intelli- 
gent and  observing  men  whose  minds  were  really  in  a  situa- 
tion to  decide  upon  the  whole  case  according  to  the  testi- 
mony, and  would  perhaps  be  applying  the  letter  of  the  rule 
requiring  an  impartial  jury  with  a  strictness  which  is  not 
necessary  for  the  preservation  of  the  rule  itself.  But  if 


IMPANELING    THE  JURY,  467 

the  opinion  formed  be  on  a  point  so  essential  as  to  go 
far  towards  a  decision  of  the  whole  case,  and  to  have  a 
real  influence  on  the  verdict  to  be  rendered,  the  distinc- 
tion between  a  person  who  has  formed  such  an  opinion, 
and  one  who  has  in  his  mind  decided  the  whole  case, 
appears  too  slight  to  furnish  the  court  with  solid  ground 
fur  distinguishing  between  them.  The  question  must 
always  depend  on  the  strength  and  nature  of  the  opinion 
which  has  been  formed. 

In  the  case  now  under  consideration  the  court  would 
perhaps  not  consider  it  as  a  sufficient  objection  to  a  juror 
that  he  did  believe  and  had  said  that  the  prisoner  at  a 
time  considerably  anterior  to  the  fact  charged  in  the  in- 
dictment, entertained  treasonable  designs  against  the 
United  States.  He  may  have  formed  this  opinion  and 
be  undecided  on  the  question  whether  those  designs 
were  abandoned  or  prosecuted  up  to  the  time  when  the 
indictment  charges  the  overt  act  to  have  been  commit- 
ted. On  this  point  his  mind  may  be  open  to  the  testi- 
mony, although  it  would  be  desirable  that  no  juror 
should  have  formed  and  delivered  such  an  opinion,  yet 
the  court  is  inclined  to  think  it  would  not  constitute 
sufficient  cause  of  challenge.  But  if  the  juror  have 
made  up  and  declared  the  opinion  that  to  the  time  when 
the  fact  laid  in  the  indictment  is  said  to  have  been  com- 
mitted, the  prisoner  was  prosecuting  the  treasonable 
design  with  which  he  is  charged,  the  court  considers  the 
opinion  as  furnishing  just  cause  of  challenge,  and  can 
not  view  the  juror  who  has  formed  and  delivered  it  as 
impartial,  in  the  legal  and  constitutional  sense  of  that 
term. 

The  cases  put  by  way  of  illustration  appear  to  the 
court  to  be  strongly  applicable  to  that  under  considera- 
tion. They  are  those  of  burglary,  of  homicide,  and  of 
passing  counterfeit  money,  knowing  it  to  be  counterfeit ; 
cases  in  which  the  intention  and  the  fact  combine  to 
constitute  the  crime. 

If,  in  case  of  homicide,  where  the  fact  of  killing  was 
admitted  or  was  doubtful,  a  juror  should  have  made  up 
and  delivered  the  opinion  that,  though  uninformed  rela- 
tive to  the  fact  of  killing,  he  was  confident  as  to  the 
malice ;  he  was  confident  that  the  prisoner  had  deliber- 


468  TRIAL   OF  AARON  BURR. 

ately  formed  the  intention  of  murdering  the  deceased, 
and  was  prosecuting  that  intention  up  to  the  time  of  his 
death  ;  or  if  on  the  charge  of  passing  counterfeit  bank 
notes,  knowing  them  to  be  counterfeit,  the  juror  had 
declared  that,  though  uncertain  as  to  the  fact  of  passing 
the  notes,  he  was  confident  that  the  prisoner  knew  them 
to  be  counterfeit,  few  would  think  such  a  person  suffi- 
ciently impartial  to  try  the  cause  according  to  testimony. 
The  court  considers  these  cases  as  strikingly  analogous. 

It  has  been  insisted  that  in  Callender's  case  an  opinion 
was  given  different  from  that  which  is  now  delivered. 

I  acknowledge  that  I  had  not  recollected  that  case 
accurately.  I  had  thought  that  Mr.  Basset  had  stated 
himself  to  have  read  the  book  charged  as  a  libel,  and  to 
have  formed  the  opinion  that  the  publication  was  a  libel. 
I  find  by  a  reference  to  the  case  itself  that  I  was  mis- 
taken ;  that  Mr.  Basset  had  not  read  the  book,  and  had 
only  said  that  if  it  were  such  a  book  as  it  had  been  rep- 
resented to  him,  he  had  no  doubt  of  its  being  a  libel. 
This  was. going  no  further  than  Mr.  Morris  had  gone,  the 
challenge  against  whom  has  been  overruled.  Mr.  Morris 
had  frequently  declared  that  if  the  allegations  against 
the  prisoner  were  true,  he  was  guilty,  and  Mr.  Morris 
was  determined  to  be  an  impartial  juror. 

With  respect  to  the  general  question,  put  in  Callender's 
case,  the  court  considers  it  as  the  same  with  the  gen- 
eral question  put  in  this  case.  It  was,  "  Have  you  made 
up  and  delivered  the  opinion,  that  the  prisoner  is  guilty 
or  innocent  of  the  charge  laid  in  the  indictment  ?"  That 
is  in  substance,  "  Have  you  made  up  and  delivered  the 
opinion  that  the  prisoner  has  been  guilty  of  publishing  a 
false,  wicked,  and  malicious  libel,  which  subjects  him  to 
pnnishment,  under  the  act  of  congress,  on  which  he  is 
indicted?"  The  same  question  is  now  substantially  put. 
Explanatory  questions  are  now  put  when  they  are  neces- 
sary ;  and  certainly  explanatory  questions  might  have 
been  put  in  Callender's  case,  had  they  been  necessary. 

Had  the  case  of  Mr.  Basset  even  been  such  as  I  thought 
it,  had  he  read  "  The  Prospect  Before  Us,"  and  thought 
it  a  libel  without  deciding  who  was  its  author,  he  would 
have  gone  no  further  than  to  have  formed  an  opinion, 
that  certain  allegations  were  libelous,  which  is  not  dis- 


IMPANELING    THE  JURY.  469 

similar  to  the  opinion,  that  certain  acts  amount  to  trea- 
son. If,  for  example,  a  juror  had  said,  that  levying  an 
army  for  the  purpose  of  subverting  the  government  of 
the  United  States  by  force,  and  arraying  that  army  in  a 
warlike  manner,  amount  to  treason,  no  person  could  sup- 
pose him  on  that  account,  unfit  to  serve  on  the  jury. 
The  opinion  would  be  one  in  which  all  must  concur;  and 
so  was  the  opinion  that  "  The  Prospect  Before  Us  "  was 
a  libel.  Without  determining  whether  the  case  put  by 
Hawkins,  b.  2,  ch.  43,  sec.  28,  be  law  or  not,  it  is  suffi- 
cient to  observe  that  this  case  is  totally  different.  The 
opinion  which  is  there  declared  to  constitute  no  cause  of 
challenge  is  one  formed  by  the  juror  on  his  own  knowl- 
edge ;  in  this  case,  the  opinion  is  formed  on  report  and 
newspaper  publications. 

The  argument  drawn  from  the  situation  of  England 
during  the  rebellions  of  1715  and  1745,  with  respect  to 
certain  prominent  characters,  whose  situation  made  it  a 
matter  of  universal  notoriety,  that  they  were  the  objects 
of  the  law,  is  founded  entirely  on  the  absolute  necessity 
of  the  case  ;  and  the  total  and  obvious  impossibility  of 
obtaining  a  jury  whose  minds  were  not  already  made 
up.  Where  this  necessity  exists,  the  rule,  perhaps, 
must  bend  to  it,  but  .the  rule  will  bend  no  further  than 
is  required  by  actual  necessity.  The  court  can  not  be- 
lieve that  at  present  the  necessity  does  exist.  The  cases 
bear  no  resemblance  to  each  other.  There  has  not  been 
such  open  notorious  war  as  to  force  conviction  on  every 
bosom  respecting  the  fact  and  the  intention.  It  is  be- 
lieved that  a  jury  may  be  obtained  composed  of  men, 
who,  whatever  their  general  impressions  may  be,  have 
not  deliberately  formed  and  delivered  an  opinion  respect- 
ing the  guilt  or  innocence  of  the  accused. 

In  reflecting  on  this  subject,  which  I  have  done  very 
seriously  since  the  adjournment  of  yesterday,  my  mind 
has  been  forcibly  impressed  by  contemplating  the  ques- 
tion precisely  in  its  reverse.  If,  instead  of  a  panel  com- 
posed of  gentlemen  who  had  almost  unanimously  formed, 
and  publicly  delivered  an  opinion  that  the  prisoner  was 
guilty,  the  marshal  had  returned  one  composed  of  per- 
sons who  had  openly  and  publicly  maintained  his  inno- 
cence ;  who  had  insisted,  that  notwithstanding  all  the 


470  TRIAL   OF  AARON  BURR. 

testimony  in  possession  of  the  public,  they  had  no  doubt 
that  his  designs  were  perfectly  innocent ;  who  had  been 
engaged  in  repeated,  open,  and  animated  altercation  to 
prove  him  innocent,  and  that  his  objects  were  entirely 
opposite  to  those  with  which  he  was  charged  ;  would 
such  men  be  proper  and  impartial  jurors  ?  I  can  not 
believe  they  would  be  thought  so.  I  am  confident  I 
should  not  think  them  so.  I  can  not  declare  a  juror  to 
be  impartial  who  has  advanced  opinions  against  the  pris- 
oner which  would  be  cause  of  challenge  if  advanced  in 
his  favor. 

The  opinion  of  the  court  is,  that  to  have  made  up  and 
delivered  the  opinion  that  the  prisoner  entertained  the 
treasonable  designs  with  which  he  is  charged,  and  that 
he  retained  those  designs,  and  was  prosecuting  them 
when  the  act  charged  in  the  indictment  is  alleged  to  have 
been  committed  is  good  cause  of  challenge. 

The  suspended  jurymen  were  then  called.  John  H. 
Upshaw  was  asked  by  the  court  whether  he  conceived 
that  the  prisoner  had  pursued  his  treasonable  designs  to 
the  time  charged  in  the  indictment.  Mr.  Upshaw 
answered  in  the  affirmative.  And  the  Chief  Justice 
observed  that  he  was  not  qualified  to  serve  as  a  juryman. 

J.  Bowe,  Miles  Selden,  Lewis  Truehart,  William  Yan- 
cey,  Thomas  Prosser,  Nathaniel  Selden,  John  W.  Ellis, 
Armistead  T.  Mason,  and  Dabney  Minor  were  succes- 
sively set  aside,  after  having  been  further  interrogated ; 
because  having  formed  an  opinion  as  to  the  criminal  in- 
tentions of  the  accused,  they  came  within  the  principle 
of  exclusion  just  established  by  the  court. 

Mr.  Hay  then  moved  the  court  to  award  a  new  venire, 
to  consist  of  a  sufficient  number  to  secure  a  certainty  of 
supplying  the  deficient  jurymen.  He  thought,  and 
referred  to  the  authority  of  Hawkins  in  support  of  his 
opinion,  that  the  "tales"  might  exceed  the  number  of 
the  original  panel.  He  supposed  that  one  hundred  and 
fifty  would  not  be  too  few.  Were  it  not  for  the  expense 
he  would  move  for  five  hundred  ;  that  every  man  in  the 
community  who  had  read  and  believed  General  Eaton's 
deposition,  must  believe  that  the  accused  had  treasonable 
intentions;  that  as  so  much  difficulty  had  already  occur- 
red in  obtaining  only  four  jurors,  he  was  very  solicitous 


IMPANELING    THE  JURY.  471 

that  a  sufficient  number  should  be  directed  to  be  sum- 
moned at  once. 

Mr.  Burr  said  that  he  was  sorry  that  such  inferences 
had  been  made  ;  that  he  thought  a  different  conclusion 
ought  to  be  drawn  from  the  experience  already  had ; 
that  a  very  great  majority  of  the  forty-eight  first  sum- 
moned had  publicly  and  frequently  declared  the  most 
injurious  opinions  respecting  his  intentions  ;  but  when  it 
should  be  manifest  that  the  officer  of  this  court  was 
really  disposed  to  seek  proper  jurymen,  the  number 
could  easily  be  completed. 

Mr.  Wirt  hoped  that  when  insinuations  were  thrown 
out  against  the  marshal  of  this  court,  a  man  of  as  respect- 
able a  character  as  any  in  the  state,  he  might  be  called 
into  court  to  justify  himself. 

Mr.  Wick  ham  objected  to  his  panel ;  that  it  contained 
too  many  members  of  assembly  and  candidates  for  pub- 
lic favor  and  office ;  that  the  marshal  should  have 
selected  the  jury  from  those  who  were  less  in  the  habit 
of  expressing  their  political  opinions  than  those  gentle- 
men ;  for  that,  however  respectable  they  might  be,  the 
frequent  and  public  discussion  of  their  opinions'  had  a 
tendency  to  create  an  involuntary  bias  on  their  minds. 

Mr.  Botts  said  that  it  ought  not  to  be  understood  that 
the  motives  of  the  marshal  were  to  be  questioned  ;  that 
he  was  a  respectable  man,  who  certainly  meant  to  act 
faithfully  and  conscientiously. 

Mr.  Wirt  appealed  to  the  panel  itself  as  the  best 
proof  of  the  intelligence  and  integrity  of  those  who  had 
been  selected  ;  that  they  were  as  respectable  men  as  any 
in  the  whole  community;  that  it  had  been  announced 
from  the  bench  itself,  that  some  abstruse  and  complicated 
doctrines  of  treason  were  to  be  investigated  during  the 
trial ;  that  it  was  therefore  natural  that  the  marshal 
should  have  looked  out  for  the  most  enlightened  men 
and  that  the  selection  should  have  comprehended  some 
of  those  very  persons  whom  the  people  had  before 
chosen  for  the  management  of  their  public  concerns ; 
but  as  only  four  jurors  were  obtained  out  of  the  forty- 
eight,  such  a  "tales"  should  be  awarded  as  would 
be  certainly  sufficient  to  produce  the  remaining  eight 
jurors. 


472  TRIAL    OF  AARON  BURR. 

The  Chief  Justice  stated  that  the  difficulty  of  getting 
jurors  was  now  in  some  measure  removed,  as  the  opinion 
of  the  court  was  known  ;  that  the  marshal  would  not 
summon  a  man  whose  opinions  he  might  have  previously 
understood,  although  he  ought  not  to  interrogate  him 
on  the  subject  ;  that  he  would  have  a  good  reason  for 
not  placing  on  the  panel  any  man  who  should  inform 
him  that  his  opinions  were  strongly  in  conflict  with  the 
test  established  by  the  court. 

After  some  desultory  conversation,  the  court  awarded 
a  panel  of  forty-eight,  and  adjourned  till  Thursday. 

THURSDAY,  August  isth,  1807. 

As  soon  as  the  court  met,  Mr.  Burr  observed,  that 
just  before  coming  into  court,  he  had  received  a  copy  of 
the  panel  last  awarded  ;  that  is  was  defective  in  not  hav- 
ing the  places  of  residence  annexed  to  the  names  of  the 
jurors  ;  that  he  should,  perhaps,  require  till  the  day  after 
to-morrow  to  examine  it,  which  was  a  less  time  than  the 
law  allowed  him  for  that  purpose. 

Some  conversation  ensued  respecting  the  subp&na 
duces  tecum,  when  Mr.  Hay  stated  that  he  had  found 
General  Eaton's  letter  among  certain  papers  transmitted 
by  Mr.  Rodney,  and  had  filed  it  with  the  clerk;  that  he 
had  not  found  among  them  General  Wilkinson's  letter 
of  the  2ist  October,  but  would  seek  for  it. 

Three  of  the  jury  summoned  on  the  second  venire 
were  discharged  by  the  court :  viz.,  General  Pegrom,  be- 
cause he  was  then  necessarily  engaged  in  military  busi- 
ness, in  giving  the  necessary  orders  to  the  officers  of 
his  brigade,  to  get  in  readiness  its  due  proportion  of  this 
state's  quota  of  troops  required  by  the  president's  pro- 
clamation, pursuant  to  the  act  of  congress.  Mr.  Lewis, 
because  he  owned  no  freehold  in  the  State  of  Virginia ; 
and  Mr.  Moncure,  on  accouut  of  his  indisposition. 

It  was  understood  that  the  marshal  should  summon 
three  substitutes  ;  and  that  the  prisoner  should  accept 
them.  So  that  the  venire  was  still  to  consist  of  forty- 
eight. 

The  court  then  adjourned  till  Saturday. 


IMPANELING    THE  JURY.  473 


SATURDAY,  August  isth,  1807. 

Present,  Chief  Justice  Marshall ;  Judge  Griffin,  ab- 
sent. 

The  jurymen  summoned  by  the  marshal  were  severally 
called,  and  answered  to  their  names  in  the  following  or- 
der, except  seven  absentees. 

Jacob  Michaux,  of  Powhattan  ;  William  Randolph,  of 
Surry;  John  Edmunds,  of  Sussex ;  George  Minge,  of 
Charles  City  ;  William  L.  Morton,  of  Charlotte;  Chris- 
topher Anthony,  of  Goochland  ;  John  Darricot,  of  Hano- 
ver ;  Washington  Truehart,  of  Louisa  ;  Martin  Smith, 
of  Prince  Edward  ;  Benjamin  Tate,  of  City  of  Richmond ; 
Christopher  Tomkins,  of  do. ;  Benjamin  Branch  of  Din- 
widdie ;  Thomas  Branch,  of  Chesterfield  ;  James  Shep- 
pard,  of  City  of  Richmond  ;  Gabriel  Ralston,  of  do.  ; 
Micajah  Davis,  of  Bedford  ;  Reuben  Blakey,  of  Henrico  ; 
Miles  Selden,  of  Sussex  ;  Walter  Blunt,  of  do.  ;  Richard 
N.  Thweatt,  of  Petersburg  ;  John  Fitzgerald,  of  Notto- 
way  ;  Robert  M'Kim,  of  City  of  Richmond  ;  Benjamin 
Graves,  of  Chesterfield ;  William  M'Kim,  of  City  of 
Richmond  ;  Robert  Hyde  of  do.  ;  Thomas  Miller,  of 
Powhattan  ;  Thomas  Branch,  of  Chesterfield  ;  Robert 
Goode,  of  do.  ;  Henry  Randolph,  of  do. ;  Miles  Botts,  of 
do. ;  Henry  Bridgewater  of  do.  ;  Edward  Hallam,  of 
City  of  Richmond  ;  Anderson  Barret,  of  do.  ;  Henry  E. 
Coleman,  of  Halifax  ;  Edmund  Bailey,  of  City  of  Rich- 
mond ;  Holder  Hudgins,  of  Matthews;  William  H. 
Hudgins,  of  do.  ;  John  Price,  of  Henrico ;  Isham  God- 
win of  do.  ;  William  S.  Smith,  of  do. :  George  Blakey,  of 
do.  ;  Gray  Carrol,  of  Isle  of  Wight ;  Isaac  Medley,  of 
Halifax;  Richard  Curd,  of  Henrico;  Edward  Munford, 
of  Powhattan  ;  Samuel  Allen,  of  Buckingham ;  John  M. 
Sheppard,  of  Hanover;  John  Curd,  of  Goochland.  Of 
whom  there  were  seven  absent. 

On  motion  of  Mr.  Randolph,  Mr.  Benjamin  Tate  was 
excused  from  serving  on  the  jury,  on  account  of  his  bad 
state  of  health.  Henry  Randolph  wished  to  be  dis- 
charged, because  he  was  engaged  in  collecting  the  public 
revenue.  The  court  would  not,  however,  admit  the 
validity  of  the  excuse. 


474  TRIAL   OF  AARON  BURR. 

Mr.  Burr  then  addressed  the  court,  and  observed  that 
the  panel  was.now  reduced  to  forty ;  and  as  it  would  be 
exceedingly  disagreeable  for  him  to  exercise  the  privilege 
of  making  peremptory  challenges,  to  which  he  was  enti- 
tled, he  would  lay  a  proposition  before  the  opposite 
counsel  which  would  prevent  this  necessity,  and  would 
save  one  or  two  hours  that  might  be  otherwise  unpleas- 
antly spent.  He  would  select  eight  out  of  the  whole 
venire,  and  they  might  be  immediately  sworn,  and  im- 
paneled on  the  jury. 

The  Chief  Justice  said  that  if  no  objection  were  made 
it  might  be  done,  and  that  they  might  be  placed  at  the 
head  of  the  panel. 

Mr.  Hay  observed  that  there  could  be  no  utility  in 
objecting  to  it,  as  the  prisoner  could  challenge  peremp- 
torily, and  that  he  had  no  objection  to  this  arrangement, 
as  it  would  be  easy  for  him  to  examine  the  qualifications 
of  the  eight  who  were  selected,  when  they  were  once 
known. 

William  S.  Smith  then  requested  to  be  excused,  on 
account  of  his  indisposition. 

Mr.  Burr  observed  that  Mr.  Smith  was  one  of  those 
whom  he  had  selected  ;  but  he  would  be  sorry  to  impose 
such  a  burden  upon  any  invalid.  Mr.  Smith  was  dis- 
charged. 

When  Christopher  Anthony  was  called,  he  observed  to 
the  court  that  he  had  uttered  some  expressions  since  he 
came  to  town  which  he  had  been  told  would  certainly 
disqualify  him  from  serving,  according  to  the  rules  said 
to  have  been  laid  down  by  the  court.  On  being  inter- 
rogated as  to  what  words  he  had  spoken, 

Mr.  Burr  said  perhaps  the  words  were  used  through 
levity.  Do  you  think  they  would  be  sufficient  to  warp 
your  judgment? 

Answer. — No. 

Mr.  Burr. — Then,  sir,  you  are  not  disqualified. 

Mr.  Mac  Rae. — State  the  tenor  of  those  expressions. 

Anthony. — When  I  first  arrived  here  I  met  with  an  in- 
timate friend,  to  whom  I  observed  that  I  had  come  to 
town  with  a  hope  of  being  placed  on  this  jury,  and  if  I 
were,  I  would  hang  Mr.  Burr  at  once  without  further  in- 
quiry. 


IMPANELING    THE  JURY.  475 

Mr.  Mac  Rae. — Did  you  say  so,  knowing  that  such  ex- 
pressions would  disqualify  you  ? 

Answer. — I  did  not ;  for  I  never  expected  to  be  put 
on  this  panel. 

Question. — Were  you  serious  ? 

Answer. — Far  from  it.  I  spoke  in  the  utmost  spirit 
of  levity. 

Question. — Have  you  been  in  the  habit  of  reading  the 
newspapers? 

Answer. — I  have. 

Mr.  Mac  Rae  proceeded  to  make  further  inquiry  of 
him.  He  asked  him  whether  he  had  read  the  depositions 
of  Generals  Wilkinson  and  Eaton.  He  answered  in  the 
affirmative.  He  then  asked  him  whether  those  deposi- 
tions had  made  no  impression  upon  his  mind?  Hereupon 
both  Mr.  Burr  and  Mr.  Martin  objected  to  this  inquiry 
as  improper. 

Mr.  Mac  Rae  contended  that  this  examination  was  in 
vindication  of  the  rights  of  the  United  States,  and  per- 
fectly proper  and  correct,  and  was  no  more  than  had  been 
done  repeatedly  by  the  prisoner. 

Mr.  Martin. — You  have  no  right  to  disqualify  any  jury- 
man for  us. 

Chief  Justice.—  -Certainly  the  counsel  for  the  United 
States  may  challenge  for  cause. 

Mr.  Mac  Rae. — We  are  entitled  to  the  same  rights 
which  the  opposite  counsel  have  exercised  as  to  the  for- 
mer venire.  When  the  jurymen  were  successively  called 
before  the  court,  did  not  the  opposite  counsel  in  every 
case  challenge  for  cause  ?  Did  not  the  prisoner  make 
some  general  observations  that  were  intended  for  the 
ears  of  the  jury,  in  which  he  spoke  of  his  right  of  chal- 
lenge, and  requested  every  juryman  who  was  conscious 
of  prejudice  to  object  himself?  Did  they  not,  in  several 
cases,  without  exercising  the  right  of  challenge,  previ- 
ously inquire  of  the  jurymen  whether  they  had  no 
declarations  to  make?  Did  not  the  counsel  for  the  pros- 
ecution suggest  some  doubts  about  the  propriety  of  this 
course  ?  and  did  not  the  prisoner  reply  that  no  juryman 
ought  to  lock  up  in  his  own  bosom  the  prejudices  which 
he  had  conceived,  and  that  he  ought  to  declare  himself? 
Did  not  Mr.  Botts  frequently  interrogate  the  jurymen 


476  TRIAL   OF  AARON  BURR, 

whether  they  had  nothing  to  state?  Mr.  J.  Baker's  case 
will  be  particularly  recollected;  for  that  gentleman  posi- 
tively replied  that  he  had  no  observations  to  make,  until 
he  had  been  challenged  ;  and  not  until  this  step  had  been 
taken,  did  any  declarations  fall  from  Mr.  Baker.  We 
wish  to  pursue  the  same  course  now  that  was  adopted 
on  that  occasion.  We  wish  to  challenge  no  juryman  for 
cause  until  he  have  previously  made  declarations  of 
his  state  of  mind.  The  same  justice  is  due  to  the 
United  States  that  was  awarded  to  the  prisoner;  and 
they  have  the  same  right  to  know  whether  a  juryman  be 
as  perfectly  impartial  in  relation  to  the  prosecution,  as 
to  the  prisoner.  As  to  the  jurors  themselves,  they  would 
certainly  be  willing  to  give  all  the  information  in  their 
power. 

Mr.  Hay  was  willing  to  take  the  persons  selected ;  for 
he  entertained  no  doubt  of  the  integrity  of  the  gentle- 
men who  were  summoned.  He  was  willing  to  take  them 
provided  they  should  be  asked  by  the  bench  whether 
they  were  conscious  of  any  cause  which  should  disqualify 
them  from  serving.  If  they  themselves  were  satisfied, 
he  should  be  also  satisfied.  No  man  on  this  pa-nel  who 
had  definitely  made  up  his  mind,  would  conscientiously 
think  to  lay  his  hand  on  the  book  and  solemnly  avow 
himself  an  impartial  and  qualified  juryman. 

The  Chief  Justice  understood,  then,  that  these  selected 
eight,  were  to  pass  without  challenge,  unless  they  chal- 
lenged themselves.  If  the  court  were  required  to  say,  as 
seemed  to  be  the  wish  of  the  prosecution,  that  any  im- 
pressions, however  slight,  were  sufficient  cause  for  chal- 
lenge, he  would  ask  where  they  could  obtain  a  jury? 
The  United  States  had  precisely  the  same  rights  as  the 
prisoner  had,  and  were  entitled  to  make  the  same  chal- 
lenges for  good  cause.  He  then  addressed  those  eight 
jurymen  who  were  placed  at  the  head  of  the  panel,  thus : 

"  Gentlemen,  if  you  have  made  up  and  expressed  any 
opinion,  either  for  or  against  the  accused,  you  ought  to 
express  it." 

Mr.  Burr. — The  law  presumes  every  man  to  be  inno- 
cent, until  he  has  been  proved  to  be  guilty.  According 
to  the  rules  of  law,  it  is  therefore  the  duty  of  every  citi- 
zen who  serves  on  this  jury,  to  hold  himself  completely 


IMPANELING    THE  JURY.  477 

unbiased  ;  it  is  no  disqualification,  then,  for  a  man  to 
corne  forward  and  declare  that  he  believes  me  to  be  in- 
nocent. 

Chief  Justice. — The  law  certainly  presumes  every  man 
to  be  innocent,  till  the  contrary  be  proved  ;  but  if  a  jury- 
man give  an  opinion  in  favor  of  the  prisoner,  he  must  be 
rejected. 

When  Christopher  Anthony  was  called  to  the  book,  he 
stated  that  he  was  in  court  the  other  day,  when  the  first 
venire  was  investigated ;  that  it  would  be  extremely  un- 
pleasant to  serve  on  the  jury ;  and  that  his  general  opin- 
ions had  been  precisely  the  same  that  had  disqualified 
(as  he  understood)  several  other  gentlemen.  Mr.  An- 
thony's objections  were  overruled. 

John  M.  Sheppard. — I  too  feel  myself  disqualified  for 
passing  impartially  between  the  United  States  and 
Aaron  Burr.  From  the  documents  that  I  have  seen, 
particularly  the  depositions  of  Generals  Wilkinson  and 
Eaton,  I  have  believed,  and  do  still  believe,  that  his  in- 
tentions were  hostile  to  the  peace  and  safety  of  the 
United  States;  in  short,  that  he  had  intended  to  sub- 
vert the  government  of  the  United  States.  It  would  be 
inflicting  a  wound  on  my  own  bosom,  to  be  compelled 
to  serve  under  my  present  impressions.  Mr.  Sheppard 
observed,  that  considerations  of  a  private  nature  had 
also  borne  upon  his  mind :  for  he  had  a  child  at  home, 
extremely  sick. 

Mr.  Burr. — Notwithstanding  Mr.  Sheppard's  impres- 
sions, I  could  rely  upon  his  integrity  and  impartiality. 
As  to  his  private  considerations,  I  do  not  wish  wantonly 
to  wound  his  feelings.  I  must  request  him,  therefore,  to 
sit  down  "for  a  moment,  until  we  shall  ascertain  whether 
we  can  make  a  jury  without  him. 

Mr.  Hay. — Has  the  court  understood  the  extent  of 
Mr.  Sheppard's  declarations? 

Chief  Justice. — If  the  prisoner's  counsel  waive  the 
right  of  challenge,  there  is  an  end  of  it. 

James  Sheppard  was  then  called  ;  who  made  no  further 
declarations. 

Reuben  Blakey. — I  have  made  up  no  opinions  either 
way,  positively,  on  this  subject. 

Doctor  John  Fitzgerald. — It   is   incumbent  on  me  to 


478  TRIAL   OF  AARON  BURR. 

state  to  the  court,  that  I  have  formed  and  delivered  an 
opinion  unfavorable  to  Mr.  Burr.  My  opinion  has  been 
founded  upon  the  depositions  of  Generals  Eaton  and 
Wilkinson,  and  other  newspaper  publications  ;  and  it  is, 
that  Mr.  Burr's  intentions  were  hostile  and  treasonable 
against  the  United  States.  On  which  account,  I  am 
very  unwilling  to  serve,  lest  I  should  possess  that  bias 
upon  my  mind  which  is  unbecoming  a  juryman.  Mr. 
Fitzgerald  was  requested  to  sit  down  for  a  few  moments. 

Miles  Bott. — From  the  affidavits  of  Generals  Wilkinson 
and  Eaton,  my  opinion  has  been  completely  made  up  for 
several  months  past. 

Mr.  Martin. — I  suppose  you  have  only  taken  up  a  pre- 
judice, on  the  supposition  that  the  facts  stated  were 
true. 

Mr.  Bott. — I  have  gone  as  far  as  to  declare,  that  Mr. 
Burr  ought  to  be  hanged. 

Mr.  Burr. — Do  you  think  that  such  declarations  would 
now  influence  your  judgment?  Would  not  the  evi- 
dence alter  your  opinion? 

Answer. — Human  nature  is  very  frail ;  I  know  that  the 
evidence  ought,  but  it  might  or  might  not  influence  me. 
I  have  expressed  myself  in  this  manner,  perhaps,  within 
a  fortnight  ;  and  I  do  not  consider  myself  a  proper  jury- 
man. 

Mr.  Burr. —  It  will  be  seen,  either  that  I  am  under  the 
necessity  of  taking  men  in  some  degree  'prejudiced 
against  me,  or  of  having  another  venire.  I  am  unwilling 
to  submit  to  the  further  delay  of  other  "  tales,"  and  I 
must  therefore  encounter  the  consequences.  I  will  take 
Mr.  Bott,  under  the  belief  that  he  will  do  me  justice. 

Four  jurymen  then  having  been  selected,  three  were 
sworn.  Mr.  C.  Anthony  affirmed. 

When  Henry  E.  Coleman  was  called,  he  stated  that 
he  had  conceived  and  expressed  an  opinion,  that  the  de- 
signs of  Mr.  Burr  were  always  enveloped  in  mystery,  and 
inimical  to  the  United  States  ;  and  when  informed  by 
the  public  prints,  that  he  was  descending  the  river  with 
an  armed  force,  he  had  felt  as  every  friend  of  his  country 
ought  to  feel. 

Mr.  Burr. — If,  sir,  you  have  completely  prejudged  my 
case — 


IMPANELING    THE  JURY.  479 

Mr.  Coleman. — I  have  not.  I  have  not  seen  the  evi- 
dence. 

Mr.  Burr. — That  is  enough,  sir.     You  are  elected. 

Mr.  Hay  then  suggested  to  the  court  the  propriety  of 
not  swearing  all  the  jury  this  day;  as  it  would  subject 
them  to  the  inconvenience  of  an  unnecessary  confine- 
ment in  their  own  room  to-morrow  (Sunday).  Would 
it  not  be  better  for  Mr.  Marshall  (the  clerk)  to  swear 
three  only  out  of  the  remaining  four?  The  court  might 
then  impanel  the  whole  on  Monday,  and  proceed  imme- 
diately to  business. 

Mr.  Burr  had  no  objections  to  this  measure  ;  but 
hoped  that  the  court  would  enjoin  them  not  to  hold  any 
conversations  on  the  subject  of  the  trial. 

John  Curd,  upon  being  called,  stated  that  he  had  no 
prejudices  for  or  against  the  prisoner  ;  but  that  he  was 
bound  in  candor  to  inform  the  court  that  he  was  afflicted 
by  a  disorder  (a  palpitation  of  the  heart)  which  was  ir- 
regular in  its  attacks,  but  was  sometimes  very  sudden 
and  violent,  and  rendered  him  entirely  incapable  of  busi- 
ness ;  and  if  he  were  sworn  on  the  jury,  it  might  inter- 
rupt and  delay  the  progress  of  the  cause.  He  was  ex- 
cused. 

Isham  Godwin  had  formed  and  declared  a  uniform 
opinion  of  Mr.  Burr's  guilt.  If  he  were  impaneled,  he 
should  be  under  a  strong  impression  that  Mr.  Burr  was 
guilty  of  treason.  Suspended. 

Samuel  Allen  had  for  several  months  made  up  an 
opinion  unfavorable  to  the  prisoner.  Suspended. 

Benjamin  Graves  had  not  formed  an  opinion  ;  and  gave 
a  long  history  of  his  domestic  and  family  engagements, 
to  excuse  himself  from  serving.  He  was  asked  whether  he 
could  not  make  some  arrangements  of  this  business,  be- 
tween this  time  and  Monday,  calculated  to  remove  all 
the  inconvenience  of  his  serving  ?  Mr.  Graves  could  not 
positively  say. 

Mr.  Burr  then  observed  that  the  two  jurors  who  had 
been  selected  might  be  sworn ;  the  other  two  might 
be  selected  on  Monday.  And  Messrs.  Coleman  and 
Graves  were  accordingly  sworn. 

Mr.  Burr  hoped  that  the  marshal  would  direct  all  the 
necessary  preparations  to  be  made  for  the  accommoda- 


480  TRIAL   OF  AARON   BURR. 

tion  of  the  jury,  who  would  be  confined  to  their  own 
chamber  after  Monday. 

Colonel  Thomas  Branch  was  then  excused  from  serv- 
ing, because  he  was  engaged  in  military  business. 

The  Chief  Justice  requested  the  jury,  and  the  re- 
maining members  of  the  venire,  to  attend  on  Monday, 
at  twelve  o'clock  ;  and  enjoined  them  to  hold,  in  the 
meantime,  no  communication  on  this  subject  with  any 
person. 

Mr.  Hay  stated  that  he  was  satisfied  from  some  ex- 
pressions which  he  had  heard  from  Mr.  Munford  of 
Powhattan,  at  the  moment  of  his  summons,  that  the 
prisoner  would  himself  object  to  him. 

Mr.  Burr  was  satisfied  with  the  attorney's  word  ;  and 
Mr.  Munford  was  accordingly  discharged. 

Mr.  Burr  was  sorry  to  be  importunate ;  but  he  was 
under  the  necessity  of  mentioning  once  more  the  letter 
of  the  2ist  October.  He  wished  to  know  whether  the 
attorney  had  yet  found  it  amongst  his  papers,  or 
whether  he  could  point  to  any  other  means  of  obtain- 
ing it. 

Mr.  Hay  had  examined  two  bundles  of  papers  trans- 
mitted to  him  by  Mr.  Rodney,  but  he  had  not  found  it. 
There  were  other  papers  which  he  had  yet  to  examine. 
He  had,  however,  a  copy  of  the  original  letter. 

Mr.  Burr. — Where  is  this  copy  from  ?  From  Wash- 
ington, or  from  General  Wilkinson  ? 

Mr.  Hay. — It  is  from  General  Wilkinson.  He  has, 
however,  written  it  from  the  original. 

Mr.  Burr. — I  shall  not  accept  of  his  copy  ;  but  I  will 
state  this  proposition  to  the  attorney.  If  he  do  not  find 
this  letter  by  Monday,  will  he  consent  that  I  obtain  a 
subp&na  duces  tecum? 

Mr.  Hay. — I  have  no  objection. 

Chief  Justice. — I  snppose  an  order  may  be  made  to 
issue  a  subpana  duces  tecum  addressed  to  the  attorney- 
general  of  the  United  States,  in  case  the  letter  be  not 
found. 

Mr.  Hay. — I  have  no  objection. 

A  desultory  conversation  ensued  between  Messrs.  Hay 
and  Botts,  on  the  arraignment  of  H.  Blannerhassett.  Mr. 
Hay  was  averse  to  interrupting  the  jury  after  it  had  once 


IMPANELING     THE    JURY.  481 

been  impaneled  for  the  trial  of  Mr.  Burr;  he  was  there- 
fore anxious  to  have  Blannerhassett  immediately  ar- 
raigned, and  if  possible,  to  have  some  day  fixed  for  his 
trial. 

Mr.  Botts  did  not  think  it  possible  for  the  court  to  fix 
on  a  particular  time  for  his  trial,  or  for  the  attorney  to 
furnish  any  means  for  calculating  it.  Mr.  Blannerhassett 
was  not  prepared  for  his  trial ;  but  he  was  then  prepar- 
ing a  brief  for  the  information  of  his  counsel,  which 
might  enable  them  to  give  a  definitive  answer  on  this  sub- 
ject. 

Mr.  Hay  was  willing  to  grant  them  any  accommodation 
they  might  require.  At  all  events,  the  court  would  only 
have  occasion  to  meet  one  hour  sooner  on  some  day, 
to  arrange  it. 

Mr.  Botts  promised  that  he  would  notify  the  attorney 
some  day  in  the  next  week,  for  this  purpose. 

MONDAY,  August  i/th,  1807. 

Charles  Lee,  Esq.,  appeared  as  counsel  for  the  prisoner. 

Doctor  Bennett,  of  Mason  county,  a  witness  on  behalf 
of  the  United  States,  was  called  and  recognized. 

Mr.  Hay  stated  some  little  difficulty  which  had  oc- 
curred between  Mr.  Botts  and  himself.  He  had  fur- 
nished the  prisoner  with  a  list  of  the  names  of  such  wit- 
nesses, with  their  places  of  residence,  as  had  come  to  his 
knowledge.  He  had  likewise  proposed,  and  Mr.  Botts 
had  consented  that  all  such  witnesses  should  be  exam- 
ined, whose  names  should  be  furnished  to  the  prisoner 
before  the  commencement  of  the  trial.  He  had  furnished 
the  names  of  three  on  Saturday,  viz.,  Messrs.  Neil, 
Goodwin,  and  Jones  ;  which  Mr.  Botts  did  not  think 
ought  to  be  accepted,  because  they  were  not  furnished 
previous  to  the  trial.  For  his  own  part,  he  did  not  think 
that  the  trial  could  be  said  to  have  commenced  before 
the  jury  were  sworn  and  impaneled  ;  the  prisoner  might 
at  any  time  before  the  jury  were  sworn,  move  for,  and 
obtain  a  continuance  of  the  cause,  if  he  could  satisfy  the 
court  that  he  was  entitled  to  it. 

Mr.  Botts  said  that  he  had  no  doubt  Mr.  Hay 
thought  that  he  had  stated  facts  to  the  court  relative  to 


482  TRIAL   OF  AARON   BURR. 

their  supposed  agreement  ;  that,  however,  he  was  mis- 
taken, and  he  mentioned  some  circumstances  to  convince 
him  that  he  was  so  ;  but,  as  there  had  been  a  mistake, 
he  would,  as  a  matter  of  voluntary  favor  and  grace, 
agree  to  the  introduction  of  those  three  witnesses. 

Mr.  Hay  solemnly  expressed  his  belief  in  the  accu- 
racy of  his  statement ;  but  as  he  was  at  liberty  to  intro- 
duce these  three  witnesses,  he  would  let  the  subject  rest 
where  it  was. 

The  names  of  the  selected  jurors  and  of  the  venire 
were  then  called  over.  After  which,  John  M.  Sheppard 
and  Richard  Curd  were  selected  to  complete  the  panel, 
and  sworn. 

The  following  is,  therefore,  a  complete  list  of  the  petit 
jury : 

Edward  Carrington,  Reuben  Blakey, 

David  Lambert,  Benjamin  Graves, 

Richard  E.  Parker,  Miles  Bott, 

Hugh  Mercer,  Henry  E.  Coleman, 

Christopher  Anthony,  John  M.  Sheppard, 

James  Sheppard,  Richard  Curd. 

Proclamation  then  having  been  made  in  due  form, 
the  prisoner  standing  up,  the  clerk  addressed  the  jury  in 
the  usual  form,  and  read  the  indictment  in  the  words  fol- 
lowing : 

VIRGINIA  DISTRICT: 

In  the  circuit  court   of  the   United  States  of  America,  in 
and  for  the  fifth  circuit,  and  Virginia  district. 

The  Grand  inquest  of  the  United  States  of  America,  for  the  Virginia 
district,  upon  their  oath,  do  present,  that  Aaron  Burr,  late  of  the  city  of 
New  York,  and  state  of  New  York,  attorney-at-law,  being  an  inhabitant  of 
and  residing  within  the  United  States,  and  under  the  protection  of  the  laws 
of  the  United  States,  and  owing  allegiance  and  fidelity  to  the  same  United 
States,  not  having  the  fear  of  God  before  his  eyes,  nor  weighing  the  duty  of 
his  said  allegiance,  but  being  moved  and  seduced  by  the  instigation  of  the 
devil,  wickedly  devising  and  intending  the  peace  and  tranquillity  of  the 
said  Uniied  States  to  disturb;  and  to  stir,  move  and  excite  insurrection,  rebel- 
lion and  war  against  the  said  United  States  ;  on  the  tenth  day  of  December, 
in  the  year  of  Christ  one  thousand  eight  hundred  and  six,  at  a  certain  place 
called  and  known  bv  the  name  of  Blannerhassett's  island,  in  the  county  of 


INDICTMENT.  483 


Wood,  and  district  of  Virginia  aforesaid,  and  within  the  jurisdiction  of  this 
court, with  force  and  arms,  unlawfully,  falsely.maliciously  and  traitorously,  did 
compass,  imagine  and  intend  to  raise  and  levy  war,  insurrection  and  re- 
bellion against  the  said  United  States  ;  and  in  order  to  fulfill  and  bring  to 
effect  the  said  traitorous  compassings,  imaginations  and  intentions  of  him, 
the  said  Aaron  Burr,  he  the  said  Aaron  Burr  afterwards,  to  wit,  on  the  said 
tenth  day  of  December,  in  the  year  one  thousand  eight  hundred  and  six 
aforesaid,  at  the  said  island  called  Blannerhassett's  island  as  aforesaid,  in 
the  county  of  Wood  aforesaid,  in  the  district  of  Virginia  aforesaid,  and 
within  the  jurisdiction  of  this  court,  with  a  great  multitude  of  persons, 
whose  names  at  present  are  unknown  to  the  grand  inquest  aforesaid,  to  a 
great  number,  to  wit,  to  the  number  of  thirty  persons  and  upwards,  armed 
and  arrayed  in  a  warlike  manner,  that  is  to  say,  with  guns,  swords  and  dirks, 
and  other  warlike  weapons  as  well  offensive  as  defensive,  being  then  and 
there  unlawfully,  maliciously  and  traitorously  assembled  and  gathered  to- 
gether, did  falsely  and  traitorously  assemble  and  join  themselves  together 
against  the  said  United  States ;  and  then  and  there  with  force  and  arms 
did  falsely  and  traitorously  and  in  a  warlike  and  hostile  manner,  array  and 
dispose  themselves  against  the  said  United  States  ;  and  then  and  there  that 
is  to  say,  on  the  day  and  in  the  year  aforesaid,  at  the  island  aforesaid,  com- 
monly called  Blannerhassett's  island,  in  the  county  aforesaid  of  Wood, 
within  the  Virginia  district  and  the  jurisdiction  of  this  court,  in  pursuance 
of  such  their  traitorous  intentions  and  purposes  aforesaid,  he  the  said  Aaron 
Burr  with  the  said  persons  so  as  aforesaid  traitorously  assembled,  and  armed 
and  arrayed  in  manner  aforesaid,  most  wickedly,  maliciously  and  traitorously 
did  ordain,  prepare  and  levy  war  against  the  said  United  States,  contrary 
to  the  duty  of  their  said  allegiance  and  fidelity,  against  the  constitution, 
peace  and  dignity  of  the  said  United  States,  and  against  the  form  of  the 
act  of  the  congress  of  the  said  United  States  in  such  case  made  and  pro- 
vided. 

And  the  grand  inquest  of  the  United  States  of  America,  for  the  Virginia 
district,  upon  their  oaths  aforesaid,  do  further  present,  that  the  said  Aaron 
Burr  late  of  the  city  of  New  York,  and  state  of  New  York,  attorney-at-law, 
being  an  inhabitant  of,  and  residing  within  the  United  States,  and  under 
the  protection  of  the  laws  of  the  United  Sates,  and  owing  allegiance 
and  fidelity  to  the  same  United  States,  not  having  the  fear  of  God 
before  his  eyes,  nor  weighing  the  duty  of  his  said  allegiance,  but  being 
moved  and  seduced  by  the  instigation  of  the  devil,  wickedly  devising  and 
intending  the  peace  and  tranquillity  of  the  said  United  States  to  disturb  ; 
and  to  stir,  move  and  excite  insurrection,  rebellion  and  war  against  the 
said  United  States  ;  on  the  eleventh  day  ofj)ecember,  in  the  year  of  our 
Lord  one  thousand  eight  hundred  and  six,  at  a  certain  place  called  and 
known  by  the  name  of  Blannerhassett's.  island,  in  the  county  of  Wood  and 
district  of  Virginia  aforesaid,  and  within  the  jurisdiction  of  this  court,  with 
force  and  arms  unlawfully,  falsely,  maliciously  and  traitorously  did  com- 
pass, imagine  and  intend  to  raise  and  levy  war,  insurrection  and  rebellion 
against  the  said  United  States;  and  in  order  to  fulfill  and  bring  to  effect  the 
said  traitorous  compassings,  imaginations  and  intentions  of  him  the  said 
Aaron  Burr,  he  the  said  Aaron  Burr  afterwards,  to  wit,  on  the  said  last 
mentioned  day  of  December  in  the  year  one  thousand  eight  hundred  and 
six  aforesaid,  at  a  certain  place  commonly  called  and  known  by  the  name  of 
Blannerhassett's  island  in  the  said  county  of  Wood  in  the  district  of  Vir- 
ginia aforesaid,  and  within  the  jurisdiction  of  this  cburt,  with  one  other 
great  multitude  of  persons  whose  names  at  present  are  unknown  to  the 
grand  inquest  aforesaid,  to  a  great  number,  to  wit,  to  the  number  of  thirty 


484  TRIAL   OF  AARC.N  BURR. 

persons  and  upwards,  armed  and  arrayed  in  a  warlike  manner,  that  is  to 
say,  with  guns,  swords  and  dirks,  and  other  warlike  weapons,  as  well  offen- 
sive as  defensive,  being  then  and  there  unlawfully,  maliciously  and  traito- 
rously assembled  and  gathered  together,  did  falsely  and  traitorously  assem- 
ble and  join  themselves  together  against  the  said  United  States  ;  and  then 
and  there  with  force  and  arms  did  falsely  and  traitorously  and  in  a  war- 
like and  hostile  manner  array  and  dispose  themselves  against  the  said 
United  States  ;  and  then  and  there,  that  is  to  say,  on  the  day  and  in  the 
year  last  mentioned,  at  the  island  aforesaid,  in  the  county  of  Wood  afore- 
said, in  the  Virginia  district,  and  within  the  jurisdiction  of  this  court,  in 
pursuance  of  such  their  traitorous  intentions  and  purposes  aforesaid,  he  the 
said  Aaron  Burr,  with  the  said  persons  so  as  aforesaid  traitorously  assem- 
bled, and  armed  and  arranged  in  manner  aforesaid,  most  wickedly,  mali- 
ciously and  traitorously  did  ordain,  prepare  and  levy  war  against  the  said 
United  States  ;  and  further  to  fulfill  and  carry  into  effect  the  said  traitorous 
compassings,  imaginations  and  intentions  of  him  the  said  Aaron  Burr, 
against  the  said  United  States,  and  to  carry  on  the  war  thus  levied  as 
aforesaid  against  the  said  United  States,  the  said  Aaron  Burr,  with  the  mul- 
titude last  mentioned,  at  the  island  aforesaid,  in  the  said  county  of  Wood, 
within  the  Virginia  district  aforesaid,  and  within  the  jurisdiction  of  this 
court,  did  array  themselves  in  a  warlike  manner,  with  guns  and  other 
weapons,  offensive  and  defensive,  and  did  proceed  from  the  said  island 
down  the  river  Ohio  in  the  county  aforesaid,  within  the  Virginia  district 
and  within  the  jurisdiction  of  this  court,  on  the  said  eleventh  day  of  De- 
cember, in  the  year  one  thousand  eight  hundred  and  six  aforesaid,  with  the 
wicked  and  traitorous  intention  to  descend  the  said  river  and  the  river 
Mississippi,  and  by  force  and  arms  traitorously  to  take  possession  of  a  city 
commonly  called  New  Orleans,  in  the  territory  of  Orleans,  belonging  to  the 
United  States,  contrary  to  the  duty  of  their  said  allegiance  and  fidelity, 
against  the  constitution,  peace  and  dignity  of  the  said  United  States,  and 
against  the  form  of  the  act  of  the  congress  of  the  United  States  in  such 
case  made  and  provided. 

HAY,  Attorney  of  the  United  States, 

for  the  Virginia  district. 
Indorsed — "A  TRUE  BILL — JOHN  RANDOLPH.' 
A  Copy.     Teste, 

WILLIAM  MARSHALL,  Clerk. 

After  the  indictment  was  read,  Mr.  Hay  requested  that 
the  jury  should  be  furnished  with  implements  necessary 
to  enable  them  to  take  notes  on  the  evidence,  and  also 
on  the  arguments  if  they  should  think  proper ;  that  as 
the  cause  was  important,  and  would  require  all  their  at- 
tention, it  would  be  proper  to  afford  them  this  assistance. 
This  was  accordingly  done. 

Mr.  Hay  then  opened  the  case  with  the  following 
speech  : 

May  it  please  the  court,  and  you  gentlemen  of  the 
jury:  In  the  preliminary  stages  of  the  prosecution  in 
which  we  are  now  engaged,  many  observations  were 
made  extremely  derogatory  to  the  character  of  the  gov- 


OPENING  ARGUMENT  OF  MR.  HAY.     485 

ernment  .under  which  we  live,  and  injurious  to  the  feel- 
ings of  the  counsel  concerned  in  the  prosecution. 
Among  other  things,  gentlemen  of  the  jury,  it  was  said, 
that  \ve  had  indulged  an  intemperate  zeal  against  the 
prisoner,  which  transgressed  all  the  limits  of  moderation 
and  humanity;  that  we  were  anxious  to  convict  him 
even  if  innocent,  and  to  deprive  him  of  those  means  of 
defense  which  justice  and  law  direct.  I  do  not  know, 
gentlemen  of  the  jury,  whether  you  heard  this  charge,  or 
if  you  did,  whether  it  made  any  impression  on  your 
minds  ;  but  if  it  did,  it  is  my  duty  to  efface  that  impres- 
sion. But  how,  gentlemen  ?  By  professions  of  modera- 
tion, candor,  liberality  and  humanity?  professions 
easily  made  and  as  easily  forgotten  !  No.  I  will  prove, 
gentlemen,  that  this  charge  is  unjust,  by  the  course  which 
I  shall  pursue  in  the  very  management  of  this  prosecu- 
tion. We  come  now  to  a  serious  and  interesting  crisis 
in  this  inquiry;  on  the  result  of  which  the  life  of  a  man, 
and  of  a  fellow-citizen,  who  once  stood  high  in  the  esti- 
mation of  his  country,  must  certainly  depend.  It  is  al- 
leged that  his  life  is  forfeited  to  the  offended  justice  and 
violated  laws  of  his  country.  It  is  my  duty  to  support 
that  allegation  ;  but,  gentlemen  of  the  jury,  if  I  know  my- 
self, if  I  can  venture  to  express  what  my  own  feelings 
dictate,  I  shall  support  that  allegation  only  by  facts 
which  I  believe  to  be  true,  and  by  arguments  which 
have  already  produced  my  own  conviction. 

The  prisoner  at  the  bar  is  charged  with  treason,  in 
levying  war  against  the  United  States.  To  this  charge 
he  has  pleaded  not  guilty.  It  is  your  high  and  solemn 
duty  to  decide  whether  the  charge  be  true  or  not  ;  and 
you  have  sworn  to  decide  it  according  to  the  evidence 
which  shall  be  laid  before  you.  If  you  attend  to  the  obli- 
gation and  the  words  of  your  oath,  any  admonitions  from 
me,  with  respect  to  the  course  which  you  ought 
to  pursue,  will  be  entirely  superfluous.  If  you  decide 
according  to  the  evidence,  you  will  divest  your  minds  of 
every  bias,  of  all  political  prepossessions  produced  by  ex- 
traneous statements  and  rumors  which  you  may  have 
seen  and  heard.  You  will  enter  upon  the  case  with  im- 
partial attention,  and  a  firm  determination  to  do  justice 
^between  the  United  States  and  the  prisoner.  But,  gentle- 


486  TRIAL     OF    AARON    BURR. 

men,  if,  after  that  patient  investigation  of  the  ^evidence 
which  the  importance  of  the  case  requires,  and  which 
I  am  sure  you  will  bestow,  you  be  not  satisfied  of  the 
guilt  of  the  accused,  it  is  your  duty  to  say  that  he  is  not 
guilty.  This,  gentlemen  of  the  jury,  is  the  language  of 
the  law,  of  humanity,  and  of  common  sense.  If  you. 
doubt  on  the  subject,  and  can  not  bring  your  minds  to  a 
positive  determination  that  he  is  guilty,  you  must  de- 
clare him  to  be  innocent.  But,  gentleman  of  the  jury, 
there  is  one  distinction  made  sometimes  by  jurymen,  to 
which  I  will  for  a  single  moment  call  your  attention, 
which  seems  to  me  to  be  a  distinction  without  a  differ- 
ence, and  founded  in  wickedness  and  folly.  It  is  this : 
that  they  were  satisfied  as  individuals  that  the  prisoner 
wasiguilty  ;  but  yet,  that  they  were  not  satisfied  as  jury- 
men. This  appears  to  me-to  be  a  miserable  fallacy.  A 
juryman  may  entertain  a  belief,  founded  on  what  he  has 
heard  out  of  doors,  which  would  not  be  warranted  by 
the  legal  evidence  before  him  in  the  court,  on  which 
alone  he  ought  to  decide  ;  but  if  the  belief  once  exist  in 
his  mind,  from  the  evidence,  that  the  prisoner  has  com- 
mitted the  crime  alleged,  he  is  then  guilty  of  treachery 
to  his  God,  to  his  country,  and  to  himself,  if  he  do  not 
pronounce  a  verdict  dictated  by  that  belief. 

This  indictment  contains  two  counts  :  one  for  levying 
war  against  the  United  States  at  Blannerhassett's  island, 
in  the  county  of  Wood.  The  other  contains  precisely 
the  same  charge,  but  goes  on  with  this  addition,  that  in 
order  to  levy  it  more  effectually,  he  descended  the  Ohio 
and  Mississippi  with  an  armed  force  for  the  purpose 
of  taking  New  Orleans.  If  either  charge  be  supported 
by  evidence,  it  will  be  your  duty  to  find  a  verdict  against 
him. 

In  Great  Britain,  there  are  no  less  than  ten  different 
species  of  treason ;  at  least,  that  was  the  number  when 
Blackstone  wrote,  and  it  is  possible  that  the  number  may 
have  been  increased  since.  But  in  this  country,  where 
the  principle  is  established  in  the  constitution,  there  are 
only  two  descriptions  of  treason  ;  and  the  number  being 
fixed  in  the  constitution  itself,  can  never  be  increased  by 
the  legislature,  however  important  and  necessary  it 
should  be,  in  their  opinion,  that  the  number  should  be 


OPENING  ARGUMENT  OF  MR.  HAY.     487 

augmented.  By  the  3d  section  of  the  3d  article  of  the 
constitution  of  the  United  States,  "  Treason  against  the 
United  States  shall  consist  only  in  levying  war  against 
them,  or  in  adhering  to  their  enemies;  giving  them  aid 
and  comfort."  With  respect  to  the  latter  description, 
there  is  no  occasion  to  say  anything,  as  the  offense 
charged  in  the  indictment  is  "  levying  war  against  the 
United  States;"  but  it  adds  that  "no  person  shall  be 
convicted  of  treason,  unless  on  the  testimony  of  two  wit- 
nesses to  the  same  overt  act,  or  on  confession  in  open 
court."  The  offense  being  thus  constitutionally  defined, 
the  only  question  which  presents  itself  to  your  view,  at 
this  stage  of  the  inquiry,  is,  What  shall  constitute  an  overt 
act  of  levying  war  against  the  United  States?  Treason  con- 
sists in  levying  war  against  the  United  States  ;  the  ques- 
tion, then,  is,  What  is  in  the  law  an  overt  act  of"  levying 
war  "  against  the  United  States?  It  is  obvious  that  the 
interval  between  the  first  movements  towards  a  conspir- 
acy, and  actual  hostilities,  or  a  battle  fought,  is  immense. 
There  may  be  a  conspiracy  to  "  levy  war  "  but  this  is  not 
treason.  Individuals  may  meet  together  and  traitorously 
determine  to  make  dispositions  to  bring  forces  into  the 
field,  and  levy  war  against  their  country  ;  this  is  a  con- 
spiracy, but  not  treason.  The  conspirators  may  go  a 
step  further ;  they"  may  not  only  project  a  plan  for 
"  levying  war,"  but  they  may  enlist  troops  for  the  pur- 
pose of  prosecuting  their  traitorous  design  ;  but  this  is 
not  an  overt  act.  It  hath  been  decided  by  the  supreme 
court  of  the  United  States,  that  the  persons  concerned 
in  this  conspiracy  may  yet  take  one  step  further,  and  be 
on  the  safe  side  of  the  line  which  separates  conspiracy 
from  treason.  It  has  been  adjudged  that  the  individuals 
engaged  in  the  treason  may 'proceed  to  a  place  of  rendez- 
vous. But,  gentlemen,  common  sense  and  principles 
founded  on  considerations  of  national  safety  certainly 
require,  that  the  crime  of  treason  should  be  completed 
before  the  actual  commission  of  hostilities  against  the 
government.  If  force  must  be  employed  before  treason 
shall  be  said  to  be  perpetrated,  what  is  the  consequence? 
Why,  that  the  traitor  will  so  take  his  steps,  as  not  to 
strike  a  blow,  till  he  be  in  such  an  attitude  as  to  be  able 
to  bid  defiance  to  the  government,  and  laugh  at  your  de- 


488  TRIAL   OF  AARON  BURR. 

finitions  of  treason.  If  he  be  a  man  of  common  under- 
standing, he  will  not  hazard  a  blow  till  his  arrangements 
be  so  complete  that  the  blow  shall  be  fatal.  It  will,  then, 
be  a  matter  of  very  little  consequence  to  him,  what  may 
be  the  definition  of  the  crime  which  he  has  thus  com- 
mitted. What,  then,  is  the  point  at  which  a  treasonable 
conspiracy  shall  be  said  to  be  matured  into  treason  ? 
What  shall  be  said  to  be  an  overt  act  of  treason  in  this 
country?  The  answer  is  this,  gentlemen  of  the  jury, 
that  an  assemblage  of  men  convened  for  the  purpose  of 
effecting  by  force  a  treasonable  design,  which  force  is  in- 
tended to  be  employed  before  their  dispersion,  is  treason- 
able, and  the  persons  engaged  in  it  are  traitors.  The 
answer  which  I  have  thus  given  is  not  literally  that  which 
is  furnished  by  the  decision  of  the  supreme  court  of  the 
United  States;  but  it  is  substantially  the  same,  and  is 
given  in  conformity  to  what  I  understand  to  be  the 
spirit  of  that  decision.  This  is  precisely  the  question 
which  was  fully  discussed  before  the  supreme  court  of 
the  United  States ;  and  as  the  opinion  of  that  court  on 
this  question  was  pronounced  after  great  deliberation, 
no  other  judicial  tribunal  within  the  United  States 
ought  to  support  a  doctrine  contrary  to  the  principles  of 
that  decision  ;  and  that  opinion  was,  that  a  bare  assem- 
blage of  men  met  to  carry  into  forcible  execution  be- 
fore their  separation,  a  treasonable  design,  was  an  overt 
act  of  levying  war  against  the  United  States.  I  refer  to 
the  opinion  delivered  by  the  Chief  Justice,  in  the  case  of 
Bollman  and  Swartwout,  on  the  2ist  of  February,  1807; 
ii:  which  the  following  words  occur  :  "  It  is  not  the  in- 
tention of  the  court  to  say  that  no  individual  can  be 
guilty  of  this  crime  who  has  not  appeared  in  arms 
against  his  country.  On  the  contrary,  if  war  be  actually 
levied,  that  is,  '  if  a  body  of  men  be  actually  assembled 
for  the  purpose  of  effecting  by  force  a  treasonable  pur- 
pose, all  those  who  perform  any  part,  however  minute, 
or  however  remote  from  the  scene  of  action,  and  who  are 
actually  leagued  in  the  general  conspiracy,  are  to  be  con- 
sidered as  traitors;  but  there  must  be  an  actual  assem- 
bling of  men  to  constitute  a  levying  of  war.'  "  If,  there- 
fore, war  be  levied  in  this  manner,  if  a  number  of  men 
collect  together  for  the  purpose  of  effecting  a  treasonable 


OPENING  ARGUMENT  OF  MR.  HAY.     489 

purpose,  all  are  traitors.  The  construction  which  I  have 
thus  given,  comes  within  the  words  and  meaning  of  the 
decision  of  the  supreme  court,  pronounced  by  yourself. 
The  same  idea  is  expressed  in  perhaps  ten  or  fifteen 
other  parts  of  this  decision :  "  To  complete  the  crime  of 
levying  war  against  the  United  States,  there  must  be  an 
actual  assemblage  of  men  for  the  purpose  of  executing 
a  treasonable  design."  There  is  the  utmost  precision 
of  language  in  every  part  of  this  judicial  sentence. 
Again  : 

"  A  design  to  overturn  the  government  of  the  United 
States  at  New  Orleans  by  force,  would  have  been  un- 
questionably a  design,  which,  if  carried  into  execution, 
would  have  been  treason  ;  and  the  assemblage  of  a  body 
of  men  for  the  purpose  of  carrying  it  into  execution, 
would  amount  to  levying  war  against  the  United  States; 
but  no  conspiracy  for  this  object,  no  enlisting  of  men  to 
effect  it,  would  be  an  actual  levying  of  war."  If,  then, 
the  accused  and  his  associates  had  met  together  for  the 
purpose  of  effecting  by  force  a  dissolution  of  the  govern- 
ment of  the  United  States,  at  New  Orleans,  though  no 
force  had  been  used,  or  battle  fought  to  accomplish  it, 
they  would  have  been  guilty  of  treason.  Again,  gentle- 
men, the  same  idea  occurs  in  these  other  passages  :  "  It 
can  not  be  necessary  that  the  whole  army  should  be  as- 
sembled, and  that  the  various  parts  which  are  to  com- 
pose it  should  be  combined,  but  it  is  necessary  that 
there  should  be  an  actual  assemblage."  "  The  meeting  of 
particular  todies  of  men,  and  their  marching  from  places 
of  partial  to  places  of  general  rendezvous,  would  be 
such  an  assemblage."  "  It  would  certainly  be  an  overt 
act  of  levying  war."  I  think,  therefore,  gentlemen,  that  » 
I  may  with  confidence  say,  that  I  am  warranted  in  the 
construction  which  I  have  given,  by  an  express  and 
solemn  adjudication  of  the  supreme  judicial  tribunal  of 
this  country. 

Perhaps,  gentlemen  of  the  jury,  in  opening  this  cause, 
I  may  take  more  time  than  you  think  necessary,  or 
than  I  myself,  strictly  speaking,  may  think  necessary ; 
but  justice  to  the  accused  requires  that  I  should  ex- 
plicitly communicate  the  ground  and  principles  on  which 
the  prosecution  is  meant  to  be  maintained,  that  his  coun- 


490  TRIAL  OF  AARON  B  URR. 

sel  may  prepare  for  his  defense.  I  must  solicit  your  at- 
tention while  I  state  for  your  consideration  those 
reasons  which  have  induced  me,  in  giving  this  exposition 
of  the  words  "levying  war,"  to  omit  two  circumstances, 
both  of  which  may  be  deemed  by  the  counsel  for  the 
prisoner  to  form  essential  parts  in  the  definition  of  trea- 
son. In  the  definition  which  I  gave  just  examined,  no 
notice  is  taken  of  arms  or  military  weapons  ;  nor  have  I 
stated  that  any  actual  force  or  hostility  has  been  em- 
ployed for  the  purpose  of  effecting  the  treasonable  de- 
signs ;  because  I  think  neither  of  them  essential,  accord- 
ing to  the  constitution  and  laws  of  this  country. 

On  the  first  point  I  shall  offer  but  a  few  remarks.  But 
before  satisfying  you  of  the  legal  propriety  of  the  omis- 
sion, permit  me  to  examine  the  question  on  principles  of 
common  sense  ;  for  it  must  be  admitted  that  in  legal  dis- 
cussions we  do  not  always  carry  common  sense  along 
with  us  from  beginning  to  end.  Let  us,  then,  consider 
this  case,  not  a,s  it  would  be  presented  to  us  by  lawyers 
and  judges,  but  by  the  sound  principles  of  common 
sense  and  national  policy.  I  say  that  it  is  not  necessary 
that  the  conspirators  thus  assembled  should  be  armed, 
to  make  them  traitors :  but  that  their  treason  may  be 
complete,  though  they  have  not  a  single  gun,  nor  even  a 
sword,  in  the  whole  transaction.  Let  us  suppose  a  case: 
There  has  been  a  time  when  ten  or  fifteen  thousand  stand 
of*arms  were  deposited  under  the  roof  of  this  capitol ; 
suppose  that  four  or  five  thousand  unarmed  men  should 
meet  together,  within  a  few  miles  of  this  city,  with  a  de- 
liberate, preconcerted  design  to  march  to  the  capitol, 
take  possession  of  the  public  arms,  disperse  the  legisla- 
ture, and  usurp  all  the  powers  of  «the  government;  sup- 
pose ten  thousand  men  unarmed  should  come  within  a 
few  miles  of  this  city,  where  they  knew  they  could  get 
arms,  for  the  purpose  of  carrying  into  effect  their  treason- 
able designs  :  let  us  suppose,  what  is  not  unreasonable  to 
suppose,  that  the  infantry  and  cavalry  of  this  city,  should 
gird  on  their  armor,  and  resolve,  as  good  honest  citizens 
and  brave  soldiers,  to  disperse  these  conspirators,  before 
they  carried  their  treasonable  purposes  into  effect ;  they 
arm,  they  march,  and  these  conspirators,  apprised  of  their 
approach,  and  conscious  of  their  own  guilt,  disperse  and 


OPENING  ARGUMENT  OF  MR.  HAY.      491 

fly  in  every  direction.  I  ask  whether  they  would  not  be 
traitors  ?  They  had  assembled  and  marched  for  the  pur- 
pose of  subverting  the  government  of  their  country,  but 
before  they  got  possession  of  the  arms  which  it  was  their 
intention  to  seize  and  turn  against  their  country,  they 
were  dispersed,  and  effected  their  escape.  Could  any 
man  say  that  these  men,  thus  assembled,  were  not,  to  all 
intents  and  purposes,  traitors  to  their  country  ?  Or,  gen- 
tlemen, suppose  that  a  number  of  men  should  assemble 
on  Blannerhassett's  island,  in  the  county  of  Wood  ;  sup- 
pose, what  I  do  not  believe  was  the  fact,  that  they  have 
no  arms;  they  descend  the  Ohio  and  Mississippi,  with 
an  intention  to  take  New  Orleans  and  plunder  it,  and 
divide  the  union.  They  calculate  on  meeting  their  leader 
at  the  mouth  of  Cumberland  river,  and  when  at  Baton 
Rouge,  to  obtain  arms  on  the  river.  Their  numbers  in- 
crease as  they  go  on,  and  we  are  told  that  when  they  ar- 
rive there,  they  will  get  arms  by  the  aid  of  the  Spanish 
minister.  Would  the  simple  circumstance  of  their  being 
unarmed,  lessen  their  guilt  ?  Would  it  not  be  an  absurdity 
and  a  violation  of  common  sense,  to  say,  that  the  mo- 
ment before  they  got  possession  of  arms,  they  were  not 
traitors  ;  but  that  the  instant  they  put  their  hands  on 
the  muskets  they  became  traitors  ?  It  appears  to  my 
mind  that  the  description  of  treason  given  by  the  supreme 
court  was  correct,  when  in  one  passage  it  is  silent  as  to 
the  necessity  of  possessing  arms  to  constitute  treason  ; 
and  in  another  part,  if  I  am  not  greatly  mistaken,  it  has 
expressly  disclaimed  it.  If,  gentlemen,  this  point  were 
not  to  be  so  determined,  what  would  be  the  result? 
Why,  this,  that  the  conspirators  would  take  care  never  to 
touch  arms,  till  they  were  ready  to  strike  a  blow.  Their 
arrangements  would  be  made  in  such  a  manner,  that  they 
would  have  military  weapons  placed  within  their  reach, 
but  they  would  not  lay  their  hands  on  them  till  their  or- 
ganization were  complete. 

It  is  not  essential,  therefore,  on  principles  of  common 
sense  or  national  policy,  that  they  should  have  arms  be- 
fore they  could  be  said  to  have  committed  an  overt  act 
of  treason.  And  what  says  the  law?  In  the  case,  gen- 
tlemen of  the  jury,  decided  by  the  supreme  court,  you 
find  that  there  is  not  a  single  syllable  said,  from  begin- 


492  TRIAL    OF  AARON  BURR. 

ning  to  end,  with  respect  to  the  necessity  of  arms  being 
in  the  hands  of  the  persons  assembled  in  order  to  perpe- 
trate the  crime  of  treason  ;  and  in  the  trial  of  Fries,  p. 
197,  one  of  the  judges  of  the  supreme  court  (Judge  Chase) 
embraces  this  opinion ;  he  says,  "  That  the  court  are  of 
opinion,  that  military  weapons  (as  guns  and  swords  men- 
tioned in  the  indictment)  are  not  necessary  to  make  such 
insurrection,  or  rising,  amount  to  levying  war ;  because 
numbers  may  supply  the  want  of  military  weapons,  and 
other  instruments  may  effect  the  intended  mischief.  The 
legal  guilt  of  levying  war  may  be  incurred  without  the 
use  of  military  weapons,  or  military  array."  It  is  re- 
markable, too,  that  this  very  doctrine  is  admitted  by  the 
counsel  of  the  accused  (Mr.  Dallas,  p.  108).  I  do  not 
state  it  as  authority,  but  it  affords  a  strong  presumptive 
argument  that  the  law  was  against  him ;  for  the  counsel 
of  a  prisoner  never  makes  a  concession,  unless  the  law  be 
extremely  clear  against  him. 

In  Great  Britain  there  is  a  statute  which  passed  many 
years  ago,  in  the  25th  year  of  the  reign  of  Edward 
III.,  in  which  treason  is  described  in  the  very  identical 
words  of  our  constitution,  in  the  3d  section  of  the  3d 
article.  This  statute  makes  "  levying  war  "  against  the 
king  to  be  treason.  When,  therefore,  the  framers  of 
our  constitution,  many  of  whom  were  lawyers  of  distin- 
guished talents,  defined  "  treason  "  in  the  very  words  by 
which  it  had  been  defined  many  years  ago  in  that  coun- 
try, and  which  had  been  so  often  the  subject  of  discus- 
sion and  adjudication,  it  is  to  be  fairly  presumed,  that 
they  used  those  words  in  the  same  sense  which  has  been 
annexed  to  them  by  the  judges  in  Great  Britain.  An 
observation  of  a  judge  of  the  court  of  the  United  States 
on  this  subject,  who  is  now  no  more,  but  was  very  re- 
spectable (Judge  Iredell),  amply  confirms  this  remark. 
In  Fries'  Trial,  p.  167,  that  able  judge  says,  "  Now,  I 
must  confess,  as  these  able  and  learned  framers  of  our 
constitution  borrowed  the  act,  in  terms,  from  the  British 
statute  alone,  an  authority  with  which  they  were  familiar, 
that  they  certainly  at  least  meant  that  the  English 
authorities  and  definition  of  those  terms  should  be  much 
respected."  The  only  purpose  for  which  I  have  made 
the  reference  to  the  British  laws,  is  to  show  that  the 


OPENING  ARGUMENT  OF  MR.  HAY.      493 

decision  of  the  supreme  court  on  this  subject,  in  the 
case  of  Bollman  and  Swartwout,  is  not  an  innovation, 
not  a  new  doctrine,  but  is  an  exact  counterpart  of,  and 
taken  from,  the  decisions  of  the  English  Judges.  To 
prove  this.  I  refer  to  Foster's  Crown  Law,  p.  208,  where, 
speaking  of  being  armed  and  arrayed  in  a  warlike  man- 
ner, he  says  that  "  the  merits  of  the  case  have  never 
turned  singly  on  any  of  those  circumstances."  "  In  the 
cases  of  Demaree  and  Purchase,  which  are  the  last 
printed  cases  that  have  come  in  judgment,  on  the  point 
of  constructive  levying  war,  there  was  nothing  given  in 
evidence  of  the  usual  pageantry  of  war ;  no  military 
weapons,  no  banners  or  drums,  nor  any  regular  consul- 
tation, previous  to  the  rising:  and  yet  the  want  of  those 
circumstances  weighed  nothing  with  the  court ;  though 
the  prisoner's  counsel  insisted  much  on  that  matter. 
The  number  of  the  insurgents  supplied  the  want  of 
military  weapons,  &c.  The  true  criterion,  therefore,  in 
all  these  cases  is,  quo  animo,  did  the  parties  assemble? 
For  if  the  assembly  be  on  some  private  quarrel,  or  to 
take  revenge  of  particular  persons,"  then  it  is  not  trea- 
son. But  if  the  cause  of  the  assembly  be  an  object  in 
which  the  nation  itself  is  concerned,  as  taking  possession 
of  New  Orleans,  the  key  of  the  western  world,  then, 
according  to  common  sense,  the  opinion  of  the  English 
judges,  or  of  the  supreme  court,  it  is  treason.  The 
opinion  of  Judge  Foster,  is  quoted  in  East's  Crown  Law, 
vol.  i,  p.  67.  He  concurs  in  the  opinion  of  Judge 
Foster,  and  thinks  that  arms  and  military  array  are  not 
essential  to  constitute  treason. 

I  have  thought  it  my  duty  to  enter  into  this  tedious 
exposition  of  the  law  on  this  point,  though  it  did  not 
appear  to  me  to  be  absolutely  necessary,  because  our 
own  courts  have  decided  this  question,  in  language  too 
plain  to  be  misunderstood  by  mortal  man.  Another 
circumstance  which  perhaps  rendered  this  discussion  un- 
necessary, is  this:  that  the  persons  assembled  on  Blan- 
nerhassett's  island  were  actually  armed  for  offensive,  as 
well  as  defensive,  purposes. 

I  have  thus  endeavored  to  satisfy  you,  gentlemen,  that 
1  was  correct  in  omitting,  in  the  definition  of  treason, 
that  they  were  armed  or  in  military  array.  I  submit  to 


494  TRIAL    OF  AARON  BURR. 

you,  gentlemen,  how  far  I  have  succeeded  in  justifying 
the  propriety  of  this  omission. 

I  stated  to  you  a  second  omission,  that  the  persons 
assembled  are  not  stated  to  have  employed  any  actual 
force,  or  committed  any  hostilities.  I  contend  that 
treason  may  be  committed,  though  no  battle  be  fought, 
and  though  no  act  of  violence  or  force  whatsoever  be 
done. 

I  trust  that  I  have  shown  that  the  treason  is  com- 
pleted the  very  instant  that  they  assemble  together  with 
a  treasonable  design.  It  will,  perhaps,  be  said  on  the 
other  side  (though  I  can  hardly  persuade  myself  that  it 
will),  that  arms  must  be  used,  that  force  must1  be  em- 
ployed, before  war  shall  be  saiti  to  be  levied.  If  they 
should  contend  that  the  conspirators  must  have  arms, 
and  must  employ  force,  before  they  can  incur  the  guilt 
of  treason,  observe  the  embarrassment  in  which  their 
doctrine  will  involve  them.  If  ten  thousand  men  were 
to  assemble  together  and  march  to  the  city  of  Washing- 
ton, for  the  express  purpose  of  sending  the  president  to 
Monticello,  turning  congress  out  of  doors,  taking  pos- 
session of  the  capital,  and  usurping  the  powers  of  the 
government,  they  would  not  be  guilty  of  treason  ;  because 
they  had  not  yet  struck  a  blow.  They*  advance  and 
proceed  ;  they  meet  no  opposition  ;  the  nembers  of  the 
government  disperse  through  fear  ;  and  yet  this  is  not 
treason !  I  should  suppose  that  it  would  be  acknowl- 
edged to  be  usurpation,  and  that  the  persons  who  had 
thus  assembled  and  proceeded  to  the  capital  of  the 
union,  with  a  determined  intention  of  subverting  the 
government,  were  traitors.  No  violence  has  been  used, 
no  opposition  has  been  encountered,  and  they  effected 
their  object,  because  the  terror  and  dismay  inspired  by 
their  numbers,  rendered  resistance  impossible ;  yet  they 
are  not  traitors !  The  doctrine  that  makes  force,  or  the 
actual  exertion  of  arms,  an  essential  ingredient  in  the 
composition  of  treason,  is,  in  my  estimation,  the  most 
dangerous  and  most  fatal  that  can  be  conceived.  It  is  the 
very  doctrine  which  traitors  themselves,  assembled  to- 
gether for  the  purpose  of  devising  taws  for  their  own 
security,  would  be  most  disposed  to  recognize.  For  if 
they  were  not  traitors  till  they  struck  a  blow,  they  would 


OPENING  ARGUMENT  OF  MR.  HA  Y       4<,5 

have  nothing  else  to  do  but  to  be  on  their  guaro  and 
never  to  lift  their  arm  till  the  blow  should  take  full 
effect.  The  doctrine  for  which  I  contend,  is  completely 
and  unequivocally  confirmed  by  the  decision  of  the 
supreme  court  of  the  United  S»ates.  There  is  not  a 
single  word  in  it  from  which  it  can  be  reasonably 
inferred,  that,  in  order  to  commit  treason,  actual  hostil- 
ity or  force  must  be  employed. 

I  do  not  know  whether  the  counsel  for  the  accused 
will  take  shelter  under  some  expressions  used  by  the 
judges  in  the  case  of  Fries,  p.  197 ;  and  I  candidly  admit 
that  there  are  some  expressions  used  by  Judge  Chase, 
from  which  it  may  be  inferred  that  force  must  be  used, 
to  complete  the  crime  of  treason.  If  they  should  think 
proper  to  rely  on  those  expressions,  to  prove  that  force 
is  necessary,  I  have  only  to  remark,  that  it  is  but  the 
opinion  of  a  single  judge,  or  of  the  judges  of  a  subordin- 
ate court,  and  can  not  be  opposed  to  the  decision  of  the 
supreme  court.  But  this  opinion  can  not  be  considered 
as  authority,  for  two  reasons.  First,  it  will  be  recol- 
lected that  the  opinion  on  that  point  is  extrajudicial ; 
by  which  I  mean  to  say,  that  it  was  not  such  a  point  as 
was  necessary  to  be  settled  in  the  case  then  before  the 
court.  He  was  speaking  on  a  subject  not  immediately 
before  him,  and  which  he  decided  only  incidentally.  The 
question  before  him,  was  not  whether  force  did  enter 
into  the  composition  of  treason  ;  for  in  the  case  of  Fries 
there  was  no  sort  of  doubt  that  every  kind  of  force  was 
used.  It  was  a  case  of  an  actual  opposition  to  the  laws 
of  the  United  States  :  and  nothing  is  considered  as  an 
authority,  but  a  decision  of  the  court  on  the  very  point 
which  brings  the  question  before  it ;  the  opinion  was 
therefore  extrajudicial. 

But,  secondly,  the  opinion  delivered  by  Judge  Chase  will 
be  found,  on  an  accurate  inspection,  not  to  be  consistent 
with  itself;  for,  in  some  parts  of  it,  he  contends  for  the 
doctrine  which  I  now  maintain,  and  expresses  himself  in 
very  different  language  from  those  relied  on.  I  do  not 
say  this  by  way  of  detracting  from  the  intellectual  powers 
of  the  judge ;  but  such  is  the  infirmity  of  human  nature, 
that  it  is  difficult  for  the  ablest  man  to  be  always  con- 
sistent in  argument.  In  his  definition  of  treason,  in  the 


\ 
496  TRIAL   OF  AARON  BURR. 

same  case,  p.  196,  he  says,  that  "  any  insurrection  or  ris- 
ing of  any  body  of  people,  within  the  United  States,  to 
attain  or  effect,  by  force  or  violence,  any  object  of  a  great 
public  nature,  or  of  public  and  general  (or  national)  con- 
cern, is  a  levying  of  war  against  the  United  States,  with- 
in the  contemplation  and  construction  of  the  constitu- 
tion." Thus  excluding  from  his  definition  the  two  cir- 
cumstances which  I  have  omitted  in  mine :  military- 
weapons,  and  the  actual  employment  of  force.  In  the 
next  page,  he  expressly  states,  that  military  weapons,  &c. 
are  not  essential  in  the  consummation  of  treason  ;  and 
yet  in  the  course  of  the  same  charge,,  and  in  the  same 
page,  he  seems  to  think  that  some  force  must  be  em- 
ployed, before  the  crime  can  be  legally  complete.  In 
the  former  page,  he  lays  down  the  doctrine  for  which  I 
contend  ;  which  is  the  very  same  that  was  delivered  in 
the  case  of  Bollman  and  Swartwout ;  that  is,  that  an  as- 
semblage of  men  for  the  purpose  before  described,  is  a 
"levying  of  war."  After  stating  this  in  terms  as  precise 
as  any  in  the  English  language,  he  says  in  the  next  page 
(197),  that  "some  actual  force  or  violence  must  be  used, 
in  pursuance  of  such  design  to  levy  war ;  but  that  it  is 
altogether  immaterial  whether  the  force  used  be  sufficient 
to  effectuate  the  object ;  any  force  connected  with  the 
intention,  will  constitute  the  crime  of  levying  war  ;"  and 
however  other  parts  of  this  opinion  may  be  reconciled  to 
each  other,  that  part  where  he  says,  that  the  persons  as- 
sembled must  use  some  force,  is  incompatible  with  an- 
other part,  where  he  declares  that  any  insurrection  or 
rising  of  any  body  of  people,  to  attain  or  effect  by  force, 
any  object  of  a  great  "  public  nature,  &c.  is  a  levying  of 
war,"  &c.  In  the  one,  some  actual  force  is  requisite  ;  in 
the  other,  only  an  insurrection  or  rising  of  a  body  of  the 
people,  for  the  purpose  of  effecting  their  object  by  force, 
is  deemed  sufficient.  I  stated  to  you  before,  gentlemen, 
that  the  opinion,  that  they  must  have  arms,  is  inconsist- 
ent with  the  principles  of  national  policy,  and  opposed 
to  the  opinion  of  the  supreme  court. 

It  is  only  a  mere  dictum  of  Judge  Chase,  in  a  case  not 
necessary  to  be  decided.  The  truth  is,  that  he  did  not 
express  himself  on  this  subject  with  the  precis-ion  which 
he  would  have  displayed  had  the  question  before  h:m 


OPENING  ARGUMENT  OF  MR.  HAY.      497 

been  what  it  was  before  the  supreme  court,  and  v/hat  it 
is  here.  In  2nd  Dallas's  Reports,  p.  335,  Judge  Patter- 
son lays  down  the  law  on  this  subject,  in  exact  conform- 
ity to  the  opinion  of  the  supreme  court;  and  d'oes  not 
think  war-like  weapons  necessary  to  constitute  an  act  of 
treason.  Let  me  also  refer  to  the  argument  of  Mr.  Lewis, 
who  appeared  as  counsel  in  the  defense  of  Fries,  with  as 
much  zeal  and  professional  ability  as  any  man  could 
have  done.  I  do  not  know  him,  but  he  is  said  to  be  a 
man  of  great  ability  and  legal  erudition.  He  would 
make  no  concession  injurious  to  his  client ;  and  yet,  in 
his  elaborate  argument,  he  says  not  one  word  about  the 
employment  of  force,  or  the  actual  commission  of  hostili- 
ties. If  they  assemble  without  the  employment  of  force, 
but  for  the  purpose  of  effecting  a  treasonable  design  be- 
fore their  separation,  they  are  traitors.  Such  is  the  law 
as  defined  by  the  supreme  court,  and  admitted  by  a  most 
able  and  zealous  defender  of  a  person  prosecuted  for 
treason. 

These  opinions  and  decisions  are  in  conformity  to  the 
most  respectable  authorities  and  adjudications  on  criminal 
law  in  England.  Treasons  in  that  populous  country  are 
generally  accompanied  by  force  ;  but  that  the  actual  use 
of  force,  where  the  traitorous  design  of  an  assemblage  of 
men  is  clearly  proved,  is  not  necessary,  is,  in  my  judg- 
ment, indisputably  certain.  Foster,  in  p.  211,  says,  that 
"  all  insurrections  of  a  public  and  general  concern,  which 
in  judgment  of  law  are  intended  against  the  king,  to  de- 
throne or  imprison  him,  to  oblige  him  to  alter  his  mea- 
sures of  government,  or  to  remove  evil  counselors,  &c. 
amount  to  levying  war  within  the  statute,  whether  with 
the  pomp  and  open  circumstances  of  war  or  no."  The 
words  here  used,  "levying  war,"  are  the  very  words 
adopted  in  the  constitution  of  the  United  States.  In 
page  218,  he  is  still  more  explicit:  "An  assembly  armed 
and  arrayed  in  a  warlike  manner,  for  any  treasonable  pur- 
pose, is  '  bellum  levatum,'  though  not  '  bellum  percus- 
sum  '  was  levied,  though  not  struck."  See,  also,  East's 
Crown  Law,  p.  67,  before  referred  to.  After  stating  the 
same  words,  he  adds,  "  enlisting  and  marching  are  suffi- 
cient overt  acts,  without  coming  to  an  actual  engage- 
ment ;  in  the  same  manner  as  cruising  under  an  enemy's 

S3 


498  TRIAL   OF    AARON  BURR. 

commission,  though  no  act  of  express  hostility  be 
proved,  is  an  adherence  to  the  king's  enemies."  It  shows 
that  according  to  the  exposition  of  the  law  in  England, 
it  is  not  necessary  that  force  should  be  employed  before 
the  act  of  treason  shall  be  said  to  be  completed.  But 
whether  I  be  correct  in  my  exposition  of  the  English  law 
or  not,  is  perfectly  immaterial;  because  in  our  own  coun- 
try the  judges  of  the  supreme  court  have  placed  this 
point  beyond  the  reach  of  controversy  ;  and  I  hope  you 
are  perfectly  disposed  to  respect  that  opinion  which  was 
in  fact  pronounced  by  yourself. 

If,  according  to  the  decision  of  the  supreme  court, 
neither  arms  nor  force  be  essential  to  constitute  treason, 
I  will  ask  whether  an  assemblage  of  men  on  Blannerhas- 
sett's  island,  convened  with  a  traitorous  design,  to  be 
executed  before  their  separation,  were  not  treason  against 
the  United  States? 

You  will  be  told,  gentlemen,  that  certainty  in  criminal 
law  is  important)  and,  in  that  part  which  relates  to  trea- 
son, essential  to  public  liberty.  Perhaps  you  will  be  re- 
minded of  an  obversation  of  a  celebrated  writer,  that 
uncertainty  on  this  single  point  is  sufficient  to  convert 
a  republican  into  a  despotic  government.  This  observa- 
•  tion,  though  made  by  Montesquieu,  is  not  admitted  to 
be  applicable  to  the  government  of  this  country,  de- 
pendent as  it  is  on  the  people ;  nor  to  our  people,  in- 
formed as  they  are  of  their,  rights.  But  suppose  it  to  be 
so,  it  does  not  apply  to  the  subject  now  under  your  con- 
sideration. The  answer  is  as  conclusive  as  it  is  obvious, 
that  by  the  decision  of  the  supreme  court,  the  la\v  is 
rendered  certain.  The  decision  of  that  court  has  pointed 
out  to  the  people  of  the  United  States  the  line  beyond 
which  they  can  not  go  without  subjecting  themselves  to 
the  consequences  of  the  commission  of  treason.  The 
court  has  said  that  conspiracy  to  levy  war  is  not  treason  ; 
that  enlisting  of  men  is  not  treason  ;  that  marching  from 
a  place  of  partial,  to  a  place  of  general  rendezvous  is  not 
treason  ;  but  than  an  assemblage  of  men  convened  to 
effectuate  forcibly  a  traitorous  intent,  is  traitorous  ;  and 
all  concerned  in  it  are  traitors.  Every  man  may  know 
the  situation  in  which  he  stands,  and  at  what  point  to 
stop,  if  he  wish  to  avoid  the  imputation  and  the  guilt  of 


OPENING  ARGUMENT  OF  MR.  HAY.       499 

treason.  You  will  probably  be  told,  also,  of  the  danger 
of  constructive  treasons.  It  may  be  observed,  that,  in 
Great  Britain,  this  doctrine  has  produced  much  oppres- 
sion ;  and  you  may  be  asked,  why  we  should  be  ex- 
empted from  the  same  evils  in  this  country  ?  Black- 
stone,  in  vol.  4  of  his  Commentaries,  p.  75,  describes 
constructive  treason  thus  :  "  to  raise  by  force  and  arbi- 
tary  constructions,  offenses,  into  the  crime  and  punish- 
ment of  treason,  which  never  were  suspected  to  be  such  ;  " 
of  this,  some  terrible  examples  exist  in  the  earlier  peri- 
ods of  English  history,  when  the  people  were  ignorant, 
and  the  judges  entirely  dependent  on  the  king. 

It  is  admitted  that  the  doctrine  which  shall  let  in 
treasons,  not  defined  by  the  constitution  by  mere  arbi- 
tary  constructions,  influence,  or  analogy,  as  in  England 
formerly,  ought  not  to  be  countenanced.  But  it  will  not 
be  said  that  there  is,  in  this  country,  any  danger  to  be 
apprehended  on  this  subject ;  where  the  government  de- 
pends so  much  on  the  will  of  the  people,  and  the  people 
know  so  well  their  rights,  and  how  to  support  them.  I 
believe  no  danger  from  this  consideration  is  ever  to  be 
experienced  here.  It  may  serve  as  a  topic  of  declama- 
tion, but  the  apprehension  of  real  mischief  from  this 
source  is  absolutely  visionary. 

But  this  is  not  a  question  arising  on  constructive  trea- 
son, but  on  the  constitution.  The  inquiry  is,  What  is 
the  meaning  of  the  words  used  in  the  constitution  ?  It  is 
the  business,  no  doubt,  of  the  court  to  construe  what  is 
meant  by  the  words  "  levying  war."  These  words  do  not 
present  to  the  mind  a  precise  and  distinct  idea,  like  the 
words  "  murdering  a  man,"  or  "  stealing  a  horse."  If 
the  question,  What  is  "  levying  war?"  were  propounded 
distinctly  and  separately  to  every  individual  composing 
this  assemblage,  very  few,  even  of  the  most  intelligent 
among  them,  would  have  the  temerity  to  answer  without 
great  hesitation  and  doubt.  The  answer  would  be  va- 
riant ;  perhaps  as  many  opinions  as  men.  Necessity, 
therefore,  requires  that  the  courts  should  ascertain  the 
constructions  of  these  words.  It  is  their  duty  to  do  so. 
It  is  a  task  they  have  undertaken  when  they  became 
judges,  and  they  have  performed  that  task,  by  giving 
a  reasonable  construction  of  the  meaning  of  the  words 


500  TRIAL  OF  AARON  BURR. 

used  in  the  constitution,  as  descriptive  of  treason. 
This  will  not  be  called  a  constructive  treason.  It 
would  be  absurd  to  apply  that  term  to  it ;  because 
it  is  absolutely  necessary  to  define  the  offense.  On 
this  point  permit  me  to  refer  to  the  opinion  of  Judge 
Peters,  on-  Fries'  Trial;  p.  206-7:  ''The  doctrine  of 
constructive  treason  has  produced  much  real  mischief  in 
another  country ;  and  it  has  been  for  an  age  the  subject 
of  discussion  among  lawyers,  other  public  speakers,  and 
political  writers.  The  greater  part  of  the  objections  to 
it  are  totally  irrelevant  here.  The  subject  of  them  is 
unknown,  and  may  it  ever  remain  so  in  this  country.  I 
mean  the  compassing  the  death  of  the  king.  It  will  be 
found  that  the  British  judges,  since  the  days  of  political 
darkness  and  bigotry  have  passed  away,  are  to  be  found 
among  the  most  able  and  decided  opposers  of  the  abuses 
of  this  doctrine.  They  do  not  follow  decisions  and  doc- 
trines rooted  in  bad  times,  because  they  find  them  in  their 
law  books.  On  the  contrary,  on  a  fair  investigation,  it  will 
be  proved  that  those  contrary  to  justice,  reason,  and 
law,  are  rejected.  It  is  not  fair  and  sound  reasoning  to 
argue  against  the  necessity  and  indispensable  use  of -con- 
struction from  the  abuses  it  has  produced.  What  is 
there  among  the  best  of  human  (and  I  wish  I  could  not 
add  divine)  systems,  which  has  not  been  perverted  and 
abused  ?  That  there  must  be  some  defined  sense  and 
interpretative  exposition,  made  of  the  terms  "  levying 
war,"  and  when,  and  in  what  circumstances  it  is  levied 
against  the  United  States,  can  not  be  denied.  The  able 
counsel  in  this  case,  who  has  said  the  most  on  this 
subject,  and  traveled  the  furthest  into  the  gloomy,  dark, 
and  tyrannical  periods  of  British  history  and  jurispru- 
dence, for  melancholy  and  disgusting  proofs  of  atrocious 
abuses  and  even  crimes,  committed  under  color  of  law, 
has  unavoidably  himself  furnished  also  proof  of  the  nec- 
essity we  are  under  of  some  constructive  or  interpreta- 
tive expositions.  He  at  first  confined  these  expositions 
to  three  cases.  Now,  if  there  be  a  necessity  of  one,  it 
shows,  that  without  supplementary  interpretation,  the 
law  would  be  a  mere  dead  letter ;  aware  of  the  danger- 
ous lengths  to  which  the  abuses  of  construction  have 
been  carried,  courts  and  juries  should  be  cautious  in 


OPENING  ARGUMENT  OF  MR.  HAY.      501 

their  decisions  ;  but  not  so  much  alarmed  about  abuses 
as  to  refrain  from  the  proper  and  necessary  use  of  inter- 
pretation." Is  is  true,  gentlemen,  that  there  was  a  time 
when  the  courts  admitted  anything  to  be  treason  which 
the  king  of  that  country  wished  to  be  treason  ;  acts  in 
themselves  innocent,  and  which  had  no  relation  to  trea- 
son, were  construed  to  be  treason  ;  as  coining  mojney, 
where  the  party  accused  had  no  idea  of  the  commission 
of  treason,  but  merely  to  perform  the  act  of  coining. 
Surely,  gentlemen  will  not  say  that  constructive  treason'' 
has  been  introduced  into  this  country  because  the 
judges  are  obliged  to  interpret  this. part  of  the  constitu- 
tion. If,  gentlemen  of  the  jury,  the  law  thus  established 
by  the  supreme  court  shall  be  said'  to  be  a  constructive 
treason,  the  inference  is,  that  the  judges  ought  to  give 
no  opinion  on  the  meaning  of  the  constitution  on  this 
subject  ;  which  would  be  absurd  ;  for  it  is  their  solemn 
duty  to  construe  the  constitution  and  laws  of  the  gen- 
eral government.  Another  inconvenience  that  would  re- 
sult from  the  inability  of  the  judges  to  expound  the 
constitution  is,  that  the  law  would  be  perfectly  uncer- 
tain, on  the  most  interesting  of  all  legal  subjects ; 
which  would  be  a  most  grievous  mischief,  as  juries 
would  be  under  the  necessity  of  taking  upon  themselves 
the  correct  exposition  of  the  law,  or  it  must  be  con- 
ceded that  the  opinion  of  the  supreme  court  is  erron- 
eous. The  latter,  I  presume,  is  a  position  which  the 
counsel  for  the  prisoner  will  hardly  undertake  to  sup- 
port. 

If,  however,  they,  do  undertake  to  show  that  the  opin- 
ion of  the  court  is  incorrect,  and  that  the  crime  of  trea- 
son can  not  be  committed  in  this  case  ;  that  an  assem- 
blage of  men  with  a  traitorous  design  is  not  sufficient, 
but  that  actual  force  must  be  employed,  and  hostilities 
commenced  before  the  treason  is  complete,  the  consti- 
tution is  a  dead  letter:  No  man  can  be  pronounced  to 
be  a  traitor,  till,  by  striking  a  blow,  he  be,  or  conceives 
himself  to  be,  beyond  the  reach  of  the  law,  or  have  over- 
thrown your  government. 

Perhaps  it  will  be  said  that  the  decision  of  the  supreme 
court  is  not  correctly  understood  or  stated  by  me.  I 
•may  be  incorrect  in  my  exposition  of  it,  but  the  Ian- 


502  TRIAL   OF  AARON  BURR. 

guage  of  the  court  is  as  definite  and  perspicuous  as  any 
that  can  be  conceived.  If  we  do  not  understand  it  cor- 
rectly it  is  in  vain  to*  look  into  reported  cases  for  evi- 
dence of  the  law,  or  to  inquire  what  the  law  is.  In 
every  part  of  its  judicial  opinion  the  ideas  which  it  has 
expressed  are  perfectly  consistent ;  and  you  will  not  find 
from  beginning  to  end  a  sentence,  or  even  a  word  which 
implies  that  anything  more  is  necessary  for  the  comple- 
tion of  treason  than  an  assembly  of  men  convened  for 
the  purpose  of  executing  a  traitorous  design. 

I  should,  therefore,  take  it  for  granted  that  the  law  is 
as  I  have  stated  it  to  .be,  and  that  the  overt  act  of  trea- 
son was  complete,  if  there  were  an  assemblage  of  men  on 
Blannerhassett's  island,  in  the  county  of  Wood,  whether 
they  were  armed  or  not,  and  whether  they  used  force  or 
not.  It  is  incumbent  on  those  who  prosecute  to  show, 
1st,  That  there  was  a  treasonable  design  ;  and  2d,  That 
there  was  an  assemblage  of  men  for  the  purpose  of  ef- 
fectuating that  design.  It  will  be  proved  to  you,  gentle- 
men of  the  jury,  that  the  design  of  the  prisoner  was  not 
only  to  wage  war  against  the  Spanish  provinces,  but  to 
take  possession  of  the  City  of  New  Orleans,  as  prepara- 
tory to  that  design  ;  to  detach  the  people  of  that  coun- 
try from  this,  and  establish  an  independent  government 
there,  and  to  dismember  the  union,  separate  the  western 
from  the  eastern  states,  making  the  Alleghany  Mountains 
the  boundary  line.  You  will  perceive  from  the  evi- 
dence, that  he  intended  to  take  possession  of  New  Or- 
leans, to  excite  the  people  there  to  insurrection,  and  to 
take  advantage  of  the  hostile  sentiments  which  prevailed 
to  the  west  of  the  Alleghanies  against  the  Spaniards.  If 
either  of  these  be  proved  ;  if  it  be  established  that  his 
design  was  to  separate  the  states  ;  or  after  seizing  New 
Orleans,  to  invade  the  Spanish  provinces,  he  is  guilty  of 
treason.  If,  in  fact,  it  be  proved,  that  he  intended  to 
take  New  Orleans  at  all,  he  is  completely  guilty  of  trea- 
son ;  whether  he  designed  to  take  possession  of  the 
whole,  or  of  a  part,  he  is  equally  guilty  of  treason.  It 
would  be  absurd  to  suppo  e  that  a  man  who  had  resolved 
in  his  mind  a  scheme  so  gigantic  as  this,  would  commu- 
nicate it  to  many  persons.  But  he  did  disclose  it  to  a 
few  ;  and,  fortunately  for  our  country,  he  was  mistaken 


OPENING  ARGUMENT  OF  MR.  HA  Y.      503 

in  his  opinion  of  those  persons  in  whom  he  confided  ; 
and  the  evidences  of  his  design  have  been  disclosed  to 
our  government.  I  am  warranted  in  saying,  gentlemen  of 
the  jury,  that  evidence  the  most  positive  and  direct,  and 
circumstances  numerous  and  conclusive,  will  prove  to 
your  satisfaction,  that  the  intentions  of  the  accused  were 
precisely  such  as  I  have  mentioned. 

For  the  purpose  of  accomplishing  these  great  designs; 
of  establishing  an  empire  in  the  west,  of  which  New  Or- 
leans was  to  be  the  capital,  and  the  accused  was  to  be 
chief,  he  made  two  long  visits  to  the  western  country.  He 
went  to  Ohio,  Tennessee,  and  Kentucky,  in  fact  to  all  the 
western  world,  and  traveled  in  various  directions,  till  he 
went  finally  to  New  Orleans.  Wherever  he  went,  he 
spoke  disrespectfully  of  the  government  of  his  country, 
with  aview  to  facilitate  the  consummation  of  hisown  de- 
signs. He  represented  it  as  destitute  of  energy  to  sup- 
port or  defend  our  national  rights  against  foreign  enemies, 
and  of  spirit  to  maintain  our  national  character.  He  uni- 
formly said,  that  we  had  no  character  either  at  home  or 
abroad.  To  those  in  whom  he  confided,  he  asserted  that 
all  the  men  of  property  and  influence  were  dissatisfied 
with  its  arrangements,  because  they  were  not  in  the 
proper  situation  to  which  they  were  entitled  :  that  with 
five  hundred  men  he  could  effect  a  revolution  by  which 
he  could  send,  the  president  to  Monticello,  intimidate 
congress,  and  take  the  government  of  the  United  States 
into  his  own  hands ;  that  the  people  of  the  United  States 
had  so  little  knowledge  of  their  rights,  and  so  little  dis- 
position to  maintain  them,  that  they  would  meanly  and 
tamely  acquiesce  in  this  shameful  usurpation.  This  is 
the  very  language  of  the  prisoner,  about  the  government 
and  people ;  representing  the  one  as  totally  destitute  of 
all  energy  and  talents,  and  the  other  of  all  patriotism 
and  virtue.  But  he  confined  this  language  to  the  peo- 
ple of  the  east ;  he  spoke  a  different  language  to  the  peo- 
ple of  the  west.  He  told  them  that  they,were  in  a  state 
of  colonial  dependence  on  those  of  the  Atlantic  States, 
and  annually  paid  millions  to  the  government  of  the 
United  States,  for  which  they  derived  no  benefit  v:hat- 
ever  ;  for  which  they  received  no  protection,  no  return. 
The  people  on  the  other  side  of  the  Alleghanies  were  told 


504  TRIAL  OF  AARON  BURR. 

that  a  separation  was  necessary  and  would  unquestiona- 
bly take  place  ;  that  it  was  not  likely  to  take  effect  by 
the  operation  of  natural,  of  moral  and  political  causes, 
but  as  determined  by  a  particular  chain  of  events  ;  that 
the  destiny  of  the  republic  was  fixed,  and  that  this  revolu- 
tion would  be  accomplished  in  less  than  two  years.'  I 
thank  God  that  this  prediction  has  not  been  fulfilled,  and 
I  hope  our  posterity  to  the  latest  generation  will  thank  God 
that  it  has  not  been  fulfilled  before  their  time !  Such 
was  the  language  of  the  accused  ;  such  the  sentiments 
which  he  avowed,  and  the  doctrines  which  he  endea- 
vored to  propagate.  He  said  everything  to  dissatisfy 
them  with  their  brethren  of  the  east,  though  all  this  time 
he  pretended  that  his  objects  were  of  a  purely  agricultu- 
ral nature.  Nor  did  he  confine  himself  to  conversation 
with  intelligent  men  only;  there  were  writings  published 
that  came  from  the  pen  of  the  person  who  is  indicted,  as 
connected  with  him,  calculated  to  scatter  disaffection 
among  the  people  and  prepare  them  for  his  plans. 

To  accomplish  these  plans,  in  the  summer  and  fall  of 
1806,  men  were  actually  enlisted,  boats  were  built  on  the 
waters  of  the  Ohio,  provisions  purchased  to  an  enormous 
amount,  and  arms  and  ammunition  provided,  as  if  the  ob- 
ject was  meant  to  be  carried  into  effect  in  a  foreign  na- 
tion, a"nd  as  if  some  hostile  expedition  were  on  foot. 
Some  of  these  men,  about  forty  in  number,  assembled 
with  arms,  on  Blannerhasset's  island,  in  order  to  descend 
the  river.  Burr  was  not  there  then  ;  he  had  been  there 
only  a  short  'time  before,  and  intended  to  return,  but 
was  warned  not  to  return  ;  but  his  absence*at  the  time 
when  the  people  assembled  is  totally  immaterial.  A 
m^n  may  "  levy  war  "  against  his  country,  when  not  pres- 
ent. A  man  may  "levy  war  "  against  a  country,  though 
three  thousand  miles  distant.  This  we  may  probably 
have  an  experience  of  in  the  course  of  a  very  few  months. 
But  this  principle  has  been  sufficiently  established  by  the 
decision  of  the  supreme  court.  "  If  war  be  actually  le- 
vied, all  those  who  perform  any  part,  however  minute, 
or  however  remote  from  the  scene  of  action,  and  who 
are  actually  leagued  in  the  general  conspiracy,  are  to  be 
considered  as  traitors." 

These  troops  on  the  island,  seeing  the  country  alarmed 


OPENING  ARGUMENT  OF  MR.  HA  Y.      505 

and  apprehending  that  they  would  be  attacked  by  the 
militia  of  Wood  county,  made  a  precipitate  retreat  by 
night,  in  company  with  Blannerhassett,  and  went  down 
the  Ohis  to  the  mouth  of  Cumberland  river,  where  the 
accused  joined  them  and  took  the  command.  By  this 
time  their  numbers  increased  to  about  one  hundred. 
These  men,  under  the  command  of  Burr  and  Blanner- 
hassett, descended  the  Mississippi  to  Bayou.  Pierre,  a 
point  not  far  from  Natchez.  It  was  here,  gentlemen  of 
the  jury,  that  he  first  learned  that  all  his  schemes  would 
.be  frustrated  by  the  exertions  of  the  commander-in-chief; 
that  his  letter  in  cypher  had  been  communicated  to  the 
president ;  and  it  was  here  that  in  the  first  moment  of  ; 
surprise,  he  expressed  to  another  person  his  astonish- 
ment and  indignation,  at  being  (as  he  said)  thus  betrayed.  ' 
Finding  that  the  commander-in-chief,  had  baffled  all  his 
schemes,  by  communicating  his  letter  to  the  president, 
he  entered  into  a  kind  of  capitulation  with  Cowles 
Meade,  was  bound  to  appear  before  a  tribunal  at  Nat- 
chez, from  whence,  it  is  said,  he  came  off  without  leave 
of  the  court,  in  violation  of  his  recognizance,  and  in  his 
flight  was  taken  by  Perkins. 

It  will  be  proved  to  you,  by  express  and  direct  evi- 
dence, that  a  settlement  of  lands  on  the  Washita,  was 
merely  a  cover  to  conceal  the  real  design,  which  was  to 
separate  the  union,  take  possession  of  New  Orleans,  and 
attack  the  Spanish  provinces.  But  the  utmost  mystery 
and  circumspection  prevailed  on  this  subject.  To  the 
world  at  large,  and  to  those  with  whom  he  had  not 
tampered,  the  object  was  held  up  to  be  the  settlement 
of  lands  up  the  Red  river.  To  some,  intimations  were 
dropped  of  an  approaching  rupture  with  Spain,  against 
whose  provinces  the  expedition  was  intended,  and  the 
conquest  of  Mexico  was  alluded  to  ;  his  language  varied 
according  to  the  character  of  the  man  with  whom  he 
conversed.  To  a  few  only  his  real  design  was  developed  ; 
but  to  all  he  said  that  there  was  a  great  scheme  in  view. 
All  were  told  that  the  design  was  just  and  honorable; 
known  and  approved  by  the  government ;  in  which  the 
co-operation  of  the  army  was  to  be  expected ;  in  which 
great  wealth  was  to  be  acquired,  and  that  it  would  be 
developed  as  soon  as  the  proper  time  for  the  disclosure 


5o6  TRIAL   OF  AARON  BURR. 

arrived.  The  time,  however,  never  did  arrive.  At 
Blannerhassett's  island,  they  were  told  that  it  was  not 
the  time,  but  that  when  they  came  to  the  mouth  of  the 
Cumberland,  they  should  be  informed.  When  there, 
some  of  them,  whose  intentions  were  really  honest,  who 
were  not  disposed  to  violate  the  laws  of  their  country, 
and  who  were  induced  to  join  him  by  the  expectation 
of  acquiring  wealth,  by  laudable  and  honorable  enter- 
prize,  were  anxious,  and  endeavored  to  know  what  was 
the  real  design  :  but  circumstances,  they  were  told,  were 
such,  that  it  could  not  yet  be  communicated.  Ignorant, 
people  were  led  away  from  their  homes,  under  a  belief 
that  they  would  be  speedily  informed  of  the  whole  pro- 
ject. The  information  was  promised,  but  never  im- 
parted. The  consequence  was  that  when  Mr.  Burr  was 
apprehended,  they  were  left  to  find  the  way  back  to 
their  own  homes  by  any  means  in  their  power. 

Chimerical  as  this  project  was,  there  was  only  one 
single  thing  wanting  to  its  accomplishment ;  the  co-opra- 
tion  of  the  commander-in-chief,  and  of  the  American 
army.  If  General  Wilkinson  had  acted  as  some  have 
represented,  if  he  had  acted  the  part  of  a  traitor  instead 
of  performing  the  character  of  a  patriot,  I  ask  what 
would  have  been  the  situation  of  this  country  at  this 
moment  ?  There  would  have  been  a  civil  war  raging 
in  the  west ;  and  the  people  of  the  United  States,  united 
as  they  are  by  interest,  by  sympathy  and  blood,  would 
have  been  involved  in  a  sanguinary  contest  with  one  an- 
other; while  our  eastern  coasts  would  have  been  in- 
sulted and  ravaged  by  an  insolent  and  rapacious  foe,  in 
consequence  of  their  knowledge  of  our  divided  situation. 
From  this  calamity  in  the  west  we  have  been  protected 
by  the  vigilance  and  integrity  of  the  commander-in-chief. 
I  care  not  how  my  declaration  may  be  considered  :  but 
I  will  venture  to  assert,  that  from  the  adoption  of  the 
federal  constitution  till  this  time,  no  man  has  rendered 
more  essential  service  to  the  people  and  government  of 
the  United  States  than  General  Wilkinson  has  done,  by 
counteracting  and  defeating  this  project.  Yet,  for  this 
service,  eminent  and  important  as  jit  is,  he  has  been  as 
much  censured,  abused,  and  calumniated,  as  if  he  had 
joined  in  it. 


OPENING  ARGUMENT  OF  MR.  HAY.       507 

It  is  not  for  me  to  anticipate  the  defense  which  will 
be  made  for  the  accused,  but  I  presume  I  may  speak  of 
the  defense  which  he  has  made.  He  stated  himself, 
while  under  examination,  that  his  scheme  was  peaceful 
and  agricultural.  If  the  ground  shall  be  again  taken,  it 
will  be  extremely  easy  to  satisfy  you  by  a  variety  of  cir- 
cumstances, that  this  was  not  the  scheme  contemplated 
by  those  engaged  in  that  expedition.  I  intend  hereafter, 
if  necessary,  to  enter  into  .an  enumeration  of  those  cir- 
cumstances, but  at  present  I  feel  myself  too  much  ex- 
hausted to  detail  them. 

I  have  observed  that  you  would  enter  upon  this  in- 
quiry with  candor  and  patience,  and  I  must  hope,  too, 
with  firmness.  You  will  contemplate  and  decide  this 
question  on  the  same  principles,  under  the  same  laws, 
and  in  the  same  manner  as  if  the  question  were  between 
fhe  United  States  and  the  most  ignorant  an<3  deluded 
of  those  concerned  in  the  scheme.  It  is  true  that  the 
prisoner  has  been  vice-president  of  the  United  States  ; 
he  has  been  the  second  in  office  in  the  government  of 
this  country,  and  perhaps  the  second  in  the  confidence 
and  affection  of  the  people ;  and  that  he  possesses 
talents  and  energies,  which,  at  the  approaching  crisis, 
might  have  been  employed  most  honorably  for  himself, 
and  most  usefully  for  his  country  ;  but  these  circum- 
stances rather  aggravate  than  extenuate  his  guilt,  if  he  be 
guilty.  In  other  countries,  a  discrimination  may  be 
made  between  different  classes  of  the  community  ;  it  is 
not  often  that  the  laws  of  society  operate  upon  men  of 
this  stamp  in  those  countries.  Lord  George  Gordon,  the 
miserable  fanatic,  who  marched  at  the  head  of  the  riot- 
ers in  London,  in  the  year  1781,  was  discharged,  while 
eighteen  or  nineteen  of  his  poor  deluded  followers  paid 
the  forfeit  of  their  offenses,  and  were  punished  for  his 
crimes.  I  call  upon  you,  gentlemen  of  the  jury,  to  dis- 
regard all  such  distinctions  in  this  land  of  liberty,  equal- 
ity, and  justice,  to  view  this  case  in  the  same  light  in 
which  you  would  regard  it  if  any  other  man  in  the  com- 
munity were  brought  before  you.  I  call  on  you  to  do 
;vstice.  and  to  decide  the  cause  according  to  the  evidence 
^h'ich  will  be  produced  before  you. 

After  Mr.  Hay  concluded,  some  desultory  observations 


5o8  TRIAL   OF  AARON  BURR. 

were  made  by  the  counsel  on  both  sides,  with  respect  to 
the  accommodation  of  the  jury,  and  the  times  of  meet- 
ing and  adjourning  the  court  during  the  trial.  Some  ar- 
rangements were  proposed  for  the  jury  :  that  they  were 
to  occupy  convenient^  rooms  in  the  capitolat  night,  and 
in  the  recess  of  the  court;  that  for  the  sake  of  exercise, 
they  might  walk  out  in  a  body,  or  separately,  if  accom- 
panied by  the  marshal,  or  one  of  his  deputies;  that  they 
might  send  or  receive  letters,  if  shown  to  the  marshal  ; 
but  that  all  letters  should  be  laid  before  the  court  which 
should  appear  to  relate  to  the  trial,  and  be  designedly 
sent  to  influence  their  verdict.  These  arrangements 
were  not  adopted  at  this  time,  but  their  consideration 
postponed,  all  parties  being  desirous  to  accommodate 
the  jury  as  much  as  possible,  consistently  with  the 
necessity  of  keeping  them  together,  secure  from  intrusion. 

On  the  question,  how  long  the  court  ought  to  be  oc» 
cupied  every  day  during  the  trial,  Mr.  Burr  expressed  a 
wish  that  the  court  should,  for  the  sake  of  expediting 
business,  meet  at  as  early,  and  adjourn  at  as  late  an  hour 
as  possible.  He  referred  to  trials  in  England,  where  the 
court  sat  twelve  and  sixteen  hours  every  day ;  and  pro- 
posed that  the  court  should  sit  ten  or  twelve  hours  each 
day.  This  was  opposed  as  too  long,  fatiguing,  and  op- 
pressive, in  such  warm  weather. 

The  Chief  Justice  said  that  the  court  had  no  wish  on 
the  subject,  but  was  willing  to  consult  the  convenience 
of  the  gentleman  of  the  bar,  and  the  accommodation  of 
the  jury. 

It  was  then  proposed  that  the  court  should  meet  at 
nine  o'clock  in  the  morning,  and  sit  till  four  in  the  after- 
noon ;  this  was  finally  determined. 

Mr.  Hay  proceeded  then  to  the  examination  of  the 
witnesses  summoned  on  the  part  of  the  United  States  ; 
General  William  Eaton  was  sworn,  when 

Mr.  Burr  rose  and  objected  to  this  order  of  examin- 
ing the  witnesses.  He  said  Mr.  Hay  had  not  stated  the 
nature  of  Mr.  Eaton's  testimony,  but  he  presumed  that 
it  related  to  certain  conversations  said  to  have  happened 
at  Washington  ;  adding,  that  the  propriety  of  admitting 
any  other  testimony  depended  on  the  previous  proof  of 
an  overt  act. 


ORDER  OF  EXAMINING   WITNESSES.     509 

Mr.  Hay. — Our  object  is  to  prove  by  him  what  is  con- 
tained in  his  deposition,  which  has  been  published. 

Mr.  Botts,  Mr.  Wickham,  and  Mr.  Martin  then  called 
on  them  to  prove  (what  they  said  the  court  had  already 
determined  to  be  the  proper  course  of  proceeding)  an 
overt  act.  They  presumed  that  if  the  decision  of  this 
court  were  to  be  respected,  gentlemen  should  call  on 
the  witnesses  to  prove  facts  before  declarations.  But  if 
gentlemen  did  not  admit  that  this  point  had  been  already 
sufficiently  determined  by  the  court,  it  would  be  their 
duty  to  go  into  a  recapitulation  of  the  arguments,  and 
quotation  of  the  authorities  heretofore  referred  to,  un- 
less the  court  would  say  that  the  question  had  been 
already  decided.  Their  object  was  to  save  the  time  of 
the  court  ;  they  knew  that  there  had  been  a  great  deal 
of  war  in  the  newspapers  ;  but  they  also  knew  from 
actual  experience  and  positive  knowledge,  that  there  had 
been  no  war,  in  fact,  in  this  country;  and  knowing  that 
there  has  been,  in  fact,  no  war,  are  we  (they  asked)  to 
be  entertained  by  this  and  that  idle  story ;  to  waste 
several  weeks  at  great  expense  and  trouble  ;  detain  from 
their  homes  the  court,  counsel,  and  jury,  and  keep  the 
prisoner  in  a  very  unpleasant  situation  ;  and  all  for  no 
useful  purpose,  in  the  discussion  of  points  entirely  irrel- 
evant to  the  question  in  issue  ?  Shall  we  be  told  in 
justification  of  this  great  waste  of  time,  and  this  immense 
trouble,  that  they  mistook  the  law  and  the  testimony  ; 
that  they  expected  to  prove  an  overt  act,  but  were  dis- 
appointed ? 

They  further  contended  that  the  material  fact  on  which 
all  the  merits  of  the  controversy  depended  ought  first 
to  be  proved  in  every  case  ;  that  it  would  be  irregular, 
irrational,  and  illegal  to  admit  corroborative  testimony, 
before  proof  was  adduced  of  the  principal  fact  which  it 
was  intended  to  confirm.  They  admitted  that  it  was 
usual  in  most  criminal  prosecutions  to  call  on  the  prosecu- 
tor to  begin  his  proof  in  support  of  either  point,  fact,  or 
intention,  as  he  might  deem  proper;  but,  they  said, 
there  were  two  reasons  for  this  practice.  First,  every 
prosecutor,  learned  in  criminal  law,  began  with  proving 
the  fact  on  which  principally  the  charge  was  founded. 
Or,  secondly,  the  fact  was  kno\vn  to  be  susceptible  of 


5io  TRIAL   OF  AARON   BURR. 

clear  proof,  and  therefore,  there  was  an  acquiescence  on 
the  part  of  the  accused  with  respect  to  the  commission 
of  that  fact.  As  in  the  case  of  a  prosecution  for  murder, 
the  fact  of  killing  ought  certainly  to  be  first  proved  ;  but 
it  is  generally  so  well  known  to  have  been  committed  by 
the  accused,  that  there  is  no  question  made  on  that 
point ;  and  the  defense  arises  from  the  motives  or  in- 
ducement to  the  perpetration  of  the  act  whether  justifi- 
able or  excusable.  In  such  a  case,  it  would  be  ridicu- 
lous to  inquire  into  the  causes  or  circumstances  of  the 
killing,  till  the  death  were  proved  ;  but  in  all  other  cases 
of  a  similar  nature,  where  the  fundamental  fact  was 
denied,  it  must  be  proved  before  any  confimatory  proof 
should  be  admitted.  And  wherever  a  prosecutor,  from 
inadvertence,  want  of  experience,  or  any  other  cause, 
began  at  the  wrong  end  of  the  prosecution,  and  the  ac- 
cused himself  did  not  see  cause  to  acquiesce,  he  had  a 
right  to  apply  to  the  court,  to  require  proof  of  the  principal 
fact.  They  argued  with  great  ingenuity  and  at  consid- 
erable length  in  support  of  this  principle  ;  that  the  court 
ought  not  to  admit  corroborative  testimony,  in  anticipa- 
tion of  the  principal  fact  to  corroborate  which  it  is 
•  sought  to  be  introduced.  They  referred  to  the  former 
decision  of  the  court,  relative  to  this  same  point  on  the 
motion  to  hold  Mr.  Burr  to  bail  in  a  greater  sum  of 
money  than  had  been  at  first  required,  and  insisted  that 
the  order  of  evidence  was  part  of  the  law  of  evidence  ; 
that  the  court  was  to  judge  of  the  competency  of  testi- 
mony, and  had  a  right  to  stop  any  evidence  which  it 
deemed  immaterial;  that  it  was  of  no  avail  to  prove  in- 
tentions or  designs  before  an  overt  act,  an  open  deed  of 
war,  had  been  established ;  that,  as  in  a  writ  of  eject- 
ment, it  would  be  ridiculous  to  begin  with  proving  the 
boundaries  before  the  title  was  proved,  so  it  was  im- 
proper to  begin  with  the  declarations  of  Mr.  Burr,  or  any 
conversations,  until  the  overt  act  were  shown  ;  that  these 
declarations  could  only  be  admitted  as  confirmatory 
evidence  ;  that  it  would  be  puculiarly  hard  on  any  indi- 
vidual, to  ransack  and  expose  all  the  transactions  of  his 
whole  life  in  a  court  of  justice  ;  that  nothing  was  more 
repugnant  to  justice,  than  to  discuss,  misrepresent,  and 
torture  every  conversation,  however  innocent,  which  he 


ORDER  OF  EXAMINING   WITNESSES.      5 1 1 

had  held,  and  every  declaration,  however  loose  and  inad- 
vertent, which  he  had  made  at  any  time,  and  on  any  oc- 
casion, before  it  was  known  whether  any  actual  crime 
could  be  proved  against  him ;  that  if  the  prosecutor 
would  thus  proceed  to  develop  the  intention  only,  the 
court  had  a  right  to  stop  him,  and  inquire  the  produc- 
tion of  evidence  of  the  act  itself.  They  made  many 
other  obversations  to  the  same  purport.  They  cited 
Foster,  p.  246,  and  Judge  Iredell's  opinion  on  Fries's 
Trial,  the  Case  of  Smith  and  Ogden,  and  Hardy's  Case. 
Their  arguments  on  this  doctrine  are  considerably  con- 
densed :  because  it  was  afterwards,  with  other  points, 
very  fully  and  elaborately  discussed  on  the  motion  made 
by  Mr.  Wickham  to  arrest  the  evidence. 

."!/>.  Wirt  addressed  the  court  on  this  subject,  as  fol- 
lo-vs: 

After  expressing  his  regret  at  the  unnecessary  waste 
of  so  much  time,  by  so  many  motions  and  obstacles 
thrown  in  the  way  of  the  prosecution  by  the  accused,  he 
contended  that  the  opposition  made  to  the  introduction 
of  this  testimony,  and  to  the  arrangement  of  the  attor- 
ney for  the  United  States,  was  unprecedented ;  that 
from  the  first  foundation  of  courts  to  this  day,  it  had 
been  the  practice  for  the  prosecutor  to  display  the  evi- 
dence in  his  own  way  ;  and  that  it  manifested  a  disrespect 
to  the  attorney,  to  require  a  departure  from  it  in  this 
instance.  I  defy,  said  Mr.  Wirt,  the  gentlemen  to  pro- 
cure a  single  example  from  all  the  English  authorities, 
from  the  whole  history  of  their  jurisprudence,  where  the 
attorney-general,  or  the  counsel  for  the  crown,  has  been 
arrested  in  the  introduction  or  arrangement  of  the  evi- 
dence, by  the  counsel  of  the  defendant,  and  put  on  a 
different  course.  I  defy  them  to  produce  a  single  ex- 
ample of  any  interference  with  the  course  adopted  by 
the  prosecutor.  It  depends  on  himself,  who  knows  the 
evidence  best,  to  state  and  exhibit  it  according  to  his 
own  judgment.  If  the  whole  evidence  be  adduced,  the 
result  will  be  the  same,  in  whatever  manner  it  may  be 
arranged ;  but  the  chronological  order  which  the  attor- 
ney was  about  to  pursue,  unfolding  events  as  they  oc- 
curred, is  no  less  conformable  to  law  and  reason  than 
sanctioned  by  uniform  experience.  It  develops  this 


5i2  TRIAL  OF  AARON  BURR. 

conspiracy  from  its  birth  to  its  consummation  ;  unravels 
•Ihe  plot  from  its  conception  to  its  denoument,  and  traces 
Aaron  Burr  step  by  step  as  he  advanced  and  became 
more  bold,  till  the  act  was  consummated  by  the  assem- 
blage on  Blannerhassett's  island.  Is  not  this  the  lucid 
order  of  nature  and  reason?  Would  you  begin  to  nar- 
rate a  tale  at  the  end  of  it  ?  If  you  were  to  write  a  his- 
tory of  the  late  revolution,  would  you  begin  at  the  siege 
of  York  ?  We  wish  to  display  the  history  of  facts  as  they 
happened,  not  only  because  it  is  the  most  luminous  mode 
of  communicating  them  to  the  jury,  but  because  it  is  our 
duty  to  vindicate  it  as  the  right  of  the  attorney,  as  con- 
sistent with  universal  practice  in  prosecutions,  both  in 
our  own  and  every  other  civilized  country.  Examples 
of  a  contrary  practice  might  be  found  in  England,  if  it 
ever  existed  ;  but  no  case  can  be  shown  in  the  courts 
of  Great  Britain,  where  the  counsel  for  a  prisoner 
has  been  permitted  on  a  trial  to  invert  the  order  of 
chronology  for  his  own  purposes.  I  refer  the  court  to 
the  trial  of  Hardy,  pages  95,  96,  97.  Though  that  case 
is  not  directly  applicable  to  the  case  now  before  the 
court,  I  introduce  it  to  show  the  independence  of  the 
attorney-general  of  England,  in  conducting  prosecutions 
and  introducing  testimony  as  he  thinks  proper ;  and  to 
prove  that  the  opposition  now  made  to  our  evidence  is 
unusual  in  that  country.  He  introduced  many  letters 
and  papers  against  Hardy,  and  declarations  of  his  asso- 
ciates. In  page  95,  "  Then  followed  the  correspondence 
between  Mr.  Hardy  as  secretary  to  the  corresponding 
society,  and  Mr.  Gerald  and  Mr.  Margarot,  two  of  the 
delegates  at  the  convention  in  Edinburgh  ;  most  of  these 
papers  were  printed  also  in  the  appendix  to  the  report 
of  the  committee  of  secrecy."  They  were  produced  by 
a  witness  by  the  name  of  Gurnell.  These  papers  being 
all  read  by  the  officer  of  the  court,  Mr.  Bowen  said, 
"  My  lords,  we  now  propose,  on  the  part  of  the  crown,  to 
read  the  proceedings  of  the  convention  itself."  To  this, 
Mr.  Erskine,  for  the  prisoner,  objected  ;  because,  though 
the  society  had  been-  formed,  the  object  of  its  formation 
had  not  yet  been  heard  of  by  evidence  ;  that  if  Margarot 
and  Gerald  had  exceeded  the  letter  and  spirit  of  their 
instructions,  the  prisoner  could  not  be  affected  by  it  • 


ORDER  OF  EXAMINING   WITNESSES.      513 

that  he  was  charged  with  no  act  of  the  convention 
at  Edinburgh.  "  He  is  charged,'  said  Mr.  Erskine,  p.  96, 
"  with  having  encompassed  the  death  of  the  king  ;  to 
prove  that  he  had  that  wicked  intention,  the  evidence 
should  be  clear,  and  refer  to  the  act  itself;  but  no  act 
can  be  given  in  evidence,  that  does  not  go  to  show  that 

<->  .  Mr  -  * 

the  prisoner  had  that  encompassing  in  his  own  heart  at 
the  time  the  act  was  committed."  This  shows  his  con- 
viction, that  proof  of  the  intention  may  precede  that  of  the 
acts  ;  p.  97.  "  I  must  take  care  that  the  rules  of  law  are 
preserved  inviolate.  All  that  I  mean  to  say  is,  that  if  Mr. 
Hardy  knew  of  the  proceedings  of  this  convention  in 
Edinburgh,  then  my  objection  falls  to  the  ground  in  this 
respect."  The  lord  president  agreed  that  the  evidence 
proposed,  could  not  be  adduced  immediately  against  the 
prisoner.  He  observed,  however,  that  it  might  be  let  in  ; 
but  that  the  application  of  it  was  another  thing.  At  all 
events,  the  prisoner  might  afterwards  object  that  the  del- 
egates had  exceeded  their  commission,  and  that  objec- 
tion would  be  valid  so  far.  Mr.  Bower. — •"  Yes  my  lord, 
we  mean  to  show,  in  many  instances,  the  prisoner's  sub- 
sequent approbation  of  the  proceedings  of  the  British 
convention."  The  lord  president. — "  That  declaration 
is  enough  to  let  in  the  evidence;  the  application  of  it 
will  depend  on  what  will  further  appear." 

Now,  sir,  how  were  the  proceedings  of  this  convention 
-admitted  as  evidence?  The  court  decided  that  they 
should  be  first  read,  and  applied  afterwards  by  other  tes- 
timony to  Hardy.  Did  the  court  tell  the  prosecutor, 
"  You  shall  stop,  till  you  show  a  previous  connection  be- 
tween them,  and  his  subsequent  approbation  ;  you  shall 
not  read  these  proceedings?"  The  attorney  told  the 
court,  "  I  will  adduce  evidence  to  let  the  testimony  in.  I 
will  prove  his  approbation  subsequently."  The  at- 
torney's declaration  of  his  intention  to  prove  the  appro- 
bation of  Hardy,  was  respected  by  the  court,  and  those 
proceedings  were  permitted  to  be  read.  Now,  here  was 
an  evident  perversion  of  the  rule  tor  which  the  gentle- 
men contend.  For,  according  to  it,  the  subsequent  ap- 
probation of  Hardy  ought  to  have  been  proved  before 
the  proceedings  of  the  convention  ;  the  admissibility  of 
the  latter  depended  on  the  proof  of  the  former.  If 
33 


514  TRIAL   OF  AARON  BURR. 

this  approbation  could  not  have  been  proved  afterwards, 
the  reading  of  the  proceedings  would  have  been  illegal 
and  the  time  employed  in  it  lost.  But  the  court  did 
not  stop  the  attorney.  It  told  him,  on  your  declaration 
that  you  will  bring  it  home  to  Hardy,  you  may  read  the 
evidence  now.  Yet  this  was  a  direct  perversion  of  the 
doctrine  which  gentlemen  wish  now  to  establish.  Why 
should  not  the  same  respect  be  paid  to  the  declarations 
of  the  attorney  for  the  United  States  in  this  case?  If 
you  permit  us  to  proceed  in  the  way  we  propose,  we 
shall  neither  violate  principle  nor  waste  time.  Can  there 
be  an  overt  act  of  treason  without  an  intention  to  com- 
mit it?  Can  any  assemblage,  however  large,  armed  or 
arrayed,  however  disorderly  and  tumultuous,  commit  an 
act  of  treason, without  intending  it  ?  and  ought  not  their 
intention  be  proved  ?  The-  rule  of  law  excludes  what- 
ever does  not  touch  the  issue;  but  the  intention  is  an 
important  feature  in  that  issue.  Every  transaction 
derives  its  character  principally  from  the  intention.  It 
is  the  great  point  in  every  case.  Yet  we  are  stopped 
from  explaining  the  intention  by  a  pretended  difficulty; 
that  its  premature  introduction  tends  to  fetter  the  minds 
of  the  jury,  as  if  the  proof  of  the  intention  preceding 
that  of  the  act,  did  not  present  a  unity  of  action  from 
the  birth  to  the  consummation  of  the  design.  But  we 
are  to  be  stopped.  The  objection  manifests  a  want  of 
respect  for  the  attorney,  as  if  he  knew  not,  better  than 
any  other,  the  nature  and  bearing  of  the  evidence,  and 
how  to  unfold  it  in  the  most  regular  way.  It  is  im- 
proper, not  only  for  this  reason,  but  because  the  mode 
we  propose  is  the  most  luminous  and  correct ;  it  is  the 
order  of  nature  itself,  as  it  traces  the  transactions  from 
beginning  to  end.  We  insist  on  its  correctness  for  an- 
other reason  ;  because  the  method  they  propose,  can  not 
produce  a  single  good  effect.  Gentlemen  say  that  if  we 
prove  the  overt  act  first,  we  can  be  permitted  to  show 
the  design  afterwards.  They  say  that  none  is  yet 
proved.  Suppose  we  prove  no  overt  act  in  the  opinion 
of  the  court,  how  are  the  jury  to  be  disposed  of?  Could 
you  send  them  out  to  deliberate,  or  could  you  discharge 
them  ?  If  the  prosecutor  state  that  he  is  about  to  pro- 
ceed to  prove  the  intention,  can  the  court  say  that  it 


ORDER  OF  EXAMINING   WITNESSES.      515 

does  not  prove  the  overt  act,  and  that  therefore  they 
will  sent  the  jury  out  without  hearing  the  evidence  re- 
specting the  intention  ?  The  court  has  no  such  powers. 
The  only  power  which  the  court  possesses  is,  not  to 
direct  the  order  in  which  the  evidence  shall  be  intro- 
duced, but  to  instruct  them  on  the  law ;  to  direct 
whether  the  evidence  be  competent  or  incompetent  to 
be  laid  before  the  jury ;  to  determine  its  weight  or 
sufficiency  to  prove  the  overt  act  is  the  exclusive  pro- 
vince of  the  jury.  The  court  can  not  withhold  from 
them  any  evidence  touching  the  issue.  Will  the  court 
stop  us?  Will  the  court  or  the  jury  decide  on  the  issue? 
All  the  authorities  of  the  law  concur  in  this,  that  the 
whole  testimony  shall  come  before  the  jury;  that  they 
have  a  right  to  hear  the  whole  and  decide  on  it. 

The  only  inquiry  now  is,  as  to  the  order  in  which  it 
shall  be  introduced.  We  insist  that  the  mode  which  we 
propose 'is  the  most  luminous,  and  most  favorable  to  a 
complete  comprehension  of  the  subject ;  and  that  that 
which  they  maintain,  is  the  most  confused  and  worst  cal- 
culated to  attain  that  end. 

I  will  refer  you  to  the  sentiments  delivered  by  Judge 
Iredell,  on  the  trial  of  Fries,  pages  174,  175  :  Mr.  Lewis 
having  stated  a  question,  whether  the  overt  act  laid  in 
the  indictment  in  a  certain  county,  must  not  be  proved 
to  the  satisfaction  of  the  jury,  both  as  to  fact  and  inten- 
tion in  the  same  county  ;  or  whether  the  overt  act  did 
not  include  both  fact  and  intention  ?  Judge  Iredell  re- 
plied, "  that  he  considered  Foster's  Crown  Law  as  settling 
that  point.  When  two  witnesses  are  produced,  who 
prove  the  overt  act  laid  in  the  indictment,  there  might 
then  be  evidence  from  other  counties  respecting  the  in- 
tention. This  is  the  opinion  of  Judge  Foster,  and  it  is 
my  opinion.  But  there  is  another  thing.  It  goes  to  a 
point  which  is  inadmissible  ;  it  is  not  for  the  court  to  say, 
whether  there  was  a  treasonable  intention  or  act  as  charged 
in  the  indictment ;  that  is  for  the  jury  to  determine  ;  we 
have  only  to  state  the  law.  We,  therefore,  should  have 
no  right  to  give  an  opinion  upon  it.  Again,  if  no  evi- 
dence could  regularly  be  admitted  out  of  the  county, 
until  both  the  fact  and  intention  were  established  where 
the  crime  is  Inid,  the  consequence  would  be,  that  there 


5 1 6  TRIAL  OF  AARON  JB  URR. 

ought  to  be  some  way  of  taking  the  opinion  of  the 
jury,  whether  they  believed  that  the  crime  was  com- 
mitted at  Bethlehem,  before  the  court  could  proceed  to 
extraneous  testimony !  This  can  not  be  done.  A  jury 
must  give  a  verdict  on.  all  the  evidence  collectively;  if 
the  evidence  be  admitted,  then  the  jury  is  bound  to  re- 
spect the  weight  of  it ;  the  competency  of  that  evidence 
is  for  the  court  to  decide  ;  but  the  jury  must  estimate 
its  weight."  You  can  not  stop  the  prosecutor  after  he 
has  given  a  part  of  the  evidence.  The  jury  must  hear 
the  whole,  and  make  up  an  opinion  on  the  whole. 
Neither  the  court  nor  the  gentlemen  can  stop  us.  If  we 
prove  an  act  in  the  course  of  the  whole  evidence,  it  will 
suffice.  If  we  prove  either  first,  we  must  go  a  step  be- 
yond that,  and  prove  the  other,  so  as  to  show  that  it  is  a 
complete  overt  act  of  treason. 

Mr.  Botts  has  referred  to  the  opinion  of  Judge  Iredell, 
but  certainly  it  can  not  be  interpreted  in  his  favor.  The 
judge  is  not  contemplating  the  order  of  evidence;  he 
speaks  of  the  evidence  to  the  jury.  The  point  before 
him  was,  not  the  order  of  the  evidence  but  the  propriety 
or  impropriety  of  its  introduction  at  all.  The  inquiry 
was,  whether  the  prisoner  were  guilty  of  levying  war 
against  the  United  States,  at  Bethlehem,  in  Northamp- 
ton county,  and  whether  the  evidence  supported  that 
charge?  and  the  judge  told  the  jury,  that,  if  the  prisoner 
went  to  the  place  where  the  act  was  committed  with 
treasonable  intentions,  the  treason' was  complete.  He 
investigated  nothing  but  the  propriety  of  the  evidence. 
Of  its  order,  nothing  was  said.  The  court  can  not  stop 
the  inquiry.  Who  is  to  judge  of  the  evidence  of  the 
overt  act?  The  court?  Will  the  court  tell  the  jury^ 
when  they  are  satisfied  that  the  overt  act  has  been 
proved  ?  When  are  we  to  be  stopped  ?  Is  the  court  to 
decide  at  what  stage  of  the  evidence  we  are  to  be 
stopped  ?  If  the  court  stop  us  before  we  adduce  all  our 
evidence,  they  usurp  the  power  of  deciding  on  the  evi- 
dence. Is  this  a  part  of  your  functions?  I  think  not. 
The  whole  evidence  must  be  laid  before  the  jury;  the. 
court  taking  care  not  to  let  in  any  but  what  is  legal 
The  authority  quoted  by  Mr.  Botts,  from  Foster,  216. 
has  no  sort  of  application  to  this  point. 


ORDER  OF  EXAMINING   WITNESSES.      517 

The  principle  of  the  decision  in  Vaughan's  case  is  not 
against  us.  The  indictment  against  Captain  Vaughan, 
was  for  adhering  to  the  king's  enemies  on  the  high  seas  ; 
and  the  overt  act  laid  was  his  cruising  on  the  king's 
subjects,  in  a  vessel  called  the  "  Loyal  Clencarty."  The 
counsel  for  the  prosecution  offered  evidence  to  prove, 
that  he  had  some  time  before  cut  away  the  custom  house 
barge,  and  had  gone  a  cruising  in  her.  This  evidence 
was  opposed  by  the  prisoner's  counsel,  and  rejected  by 
the  court ;  "  for  were  it  true,  it  is  no  sort  of  proof,  that 
the  prisoner  had  cruised  in  the  Loyal  Clencarty,  which 
was  the  only  fact  he  was  then  to  answer  for."  This  case 
only  proves  that  on  a  trial  on  an  indictment  for  any 
specific  treason,  evidence  of  a  previous  intention  tc 
commit  a  distinct  substantive  treason  is  inadmissible  ;  or 
in  other  words,  that  the  evidence  must  prove  the  charge  ; 
it  being  a  principle  universally  correct,  than  an  offense 
different  from  that  which  is  charged,  shall  not  be  proved. 
It  was  merely  the  rejection  of  evidence  foreign  to  the 
point  in  issue.  It  only  proves  that  no  evidence  of  what 
is  a  different  and  distinct  substantive  treason  of  itself 
shall  be  admitted  to  support  any  indictment.  This 
doctrine  ought  to  have  more  effect  in  England  than  in 
this  country,  since  the  abuses  agaipst  which  it  is  in- 
tended to  secure,  might  there  be  more  extensively  in- 
jurious than  here  ;  but  the  same  court  allowed  other  overt 
acts  to  be  given  in  evidence,  for  the  purpose  of  showing 
the  intention  of  the  prisoner.  It  is,  indeed,  as  Foster 
says,  a  sound  and  just  rule,  that  all  evidence  without  the 
issue,  should  be  rejected  ;  but  how  can  testimony  show- 
ing the  intention  of  Aaron  Burr,  be  said  to  be  without 
the  issue  ?  It  goes  directly  to  prove  the  treason  in  the 
indictment. 

T.he  doctrine  in  Smith  and  Ogden,  p.  82,  explains  the 
danger  of  going  out  of  the  statement  in  the  indictment, 
and  shows  the  necessity  of  preserving  the  principle, 
"  that  the  evidence  must  be  pertinent  to  the  issue." 
The  exhibition  of  proof  of  Aaron  Burr's  intention  is  with- 
in the  rule  established  in  the  English  courts,  and  the  de- 
cision in  Smith  and  Ogden. 

Mr.  Wirt  further  remarked,  that  the  former  decision 
y  r  this  court  on  this  point,  which  gentlemen  had  thought 


5i8  TRIAL   OF  AARON  BURR. 

proper  to  refer  to  as  decisive  in  their  favor,  could  not  be 
rightly  so  considered :  that  two  material  circumstances 
would  justify  this  conclusion.  First,  the  court  at  that 
time  wished  to  avoid  such  a  discussion  and  display  of 
the  evidence  as  might  prejudice  the  public  mind.  Sec- 
ond, the  court  then  decided  on  the  law  and  the  fact,  and 
performed  the  duties  of  judge  and  juror.  It  might  decide 
when  it  was  proper  to  stop  or  proceed  ;  be  satisfied  with 
the  testimony  already  introduced,  or  require  more.  But 
that  now  the  jury  were  to  decide  on  the  guilt  or  innocence 
of  the  accused,  the  court  had  only  to  state  the  law 
on  the  different  points  arising  in  the  course  of  the 
trial. 

Mr.  Lee  in  substance  contended,  that  the  act,  an  open 
deed  of  war,  committed  in  the  full  view  of  the  world,  on 
the  loth  day  of  December,  on  Blannerhassett's  island,  it 
it  ever  existed,  was  susceptible  of  clear  proof;  that  the 
time,  place,  and  manner,  of  committing  the  offense,  as 
laid  in  the  indictment,  were  material  to  be  proved ;  that 
it  was  not  pretended  that  the  counsel  for  the  prosecution 
had  any  right  to  exhibit  proof  of  any  other  treason  than 
that  specified  in  the  indictment ;  that  the  effect  of  the  facts 
to  be  proved,  must  be  discussed  hereafter,  but  that  the 
proof  of  them,  as  preliminary  to,  and  the  foundation  of 
other  testimony,  was  indispensably  requisite  ;  that  it  was 
difficult  to  de'scribe  the  absurdity  to  which  the  admission 
of  other  evidence,  before  proof  of  the  acts  authorizing 
that  admission,  would  lead  ;  that  it  would  be  almost  as 
inconsistent  and  improper,  as  to  attempt  to  make  the 
effect  precede  its  cause,  or,  according  to  the  vulgar 
phraseology,  to  put  the  cart  before  the  horse  ;  that  it 
would  be  changing  the  rules  of  law ;  that  a  great  deal  ot 
time  might  be  occupied  in  adducing  a  great  deal  of  tes- 
timony, to  charge  a  man  accused  of  murder  with  malig- 
nant intentions,  when  the  person  said  to  be  murdered 
was  actually  alive  ;  or  of  arson,  when  the  house  alleged 
to  be  burnt  was  standing  ;  that  the  act  existed,  or  it  did 
not.  If  it  existed,  it  ought  to  be  immediately  proved  : 
if  it  did  not  exist,  they  ought  magnanimously  to  yield, 
as  they  could  not  produce  that  testimony  which  might 
render  all  other  evidence  applicable. 

Mr.  Lee  further  dilated  with  great  force  and  ingenu- 


SPEECH  OF  MR.  MARTIN.  519 

ity  ;  but,  for  the  reasons  before  mentioned,  his  arguments 
are  necessarily  condensed. 

Mr.  Martin  spoke  to  the  following  effect  : 
I  shall  take  the  liberty  of  adding  a  few  observations,  to 
what  has  been  already  said. 

The   question    is,  whether   the  prosecutors  must  not 
prove  an  overt  act  in  the  first  instance,  before  any  other 
evidence  can  be  introduced  ?    We  contend  that  they  must, 
and  that  law  and  reason  support  us.     They  admit  that 
Mr.  Burr  must  be  proved  to  have  committed  one  or  more 
overt  acts ;  and  that  the  court  and  jury  must  be  satisfied 
that  these   acts  were  committed  with  a  treasonable  de- 
sign ;  that  he  levied  war  against  the  United  States,  with 
intent  to  destroy  the  constitution  and  government  there- 
of.    This  is  the  true  construction  of  the  words  "  levying 
war."     There  can  be  no  "  levying  war  "  unless  the  object 
and  desigfn   be  the  subversion   of  the  government  of  the 
United   States.     It  is   admitted   that    both  these  things 
must   be  proved,   before  he   can  be  found   guilty.     The 
question  which   results   necessarily  is,  which   of  them  is 
first  to   be  proved  ?     The  very  eloquent  and  ingenious 
counsel  admit,  that  it  is  not  of  much  consequence  in 
which  order  these  facts  are  to  be  established  ;  but  insist 
on  proceeding  as  they  have  done,  for  two  reasons  ;  first, 
because  it  is  the  most  correct  and  usual  mode ;  and,  sec- 
ondly, because  it  is  a  mark  of  disrespect  to  the  attorney 
of  the  United  States,  to  interfere  with  his  arrangement 
of  the  evidence.     As  to  the  second  cause,  which  I  think 
proper  to  answer  first,  I  will  only  say,  that  we  can  not 
conceive  why  they  should   have  construed   the  perfor- 
mance of  a  professional  duty  into  a  manifestation  of  dis- 
respect for  the  gentleman.     We  excercised  a  right,  and 
discharged    a  duty  to  our  client,  in  opposing  what  we 
deemed  an  illegal  proceeding.     How,  then,  can  he  con- 
sider himself  treated  disrespectfully  ?     He  certainly  has 
no  right  to  view  it  in  that  light.     We  had  no  such  inten- 
tion ;  and   I  will  say  further,  that  if  he  conduct  himself 
with  that  mildness  and  decorum  which  ever  becomes  a 
public  prosecutor,  he  shall  receive  from  us  every  mark  of 
respect.     As  to  the  first  and   principal  reason   urged  by 
gentlemen   in   support  of  this  mode  of  conducting  the 
prosecution,  that  it  is  the  most  correct  order  of  proceed- 


5 2G  TRIAL    OF  AARON  BURR. 

ing  ;  it  might  be  proper,  if  it  were  an  indictment  for  a 
conspiracy  to  commit  treason,  to  proceed  in  the  first  in- 
stance to  prove  the  intentions  ;  but  in  this  prosecution 
for  treason  for  "  levying  war,"  I  confidently  say,  that  the 
most  natural  order  of  proceeding  is,  to  begin  with  proving 
the  material  act,  without  which  all  other  evidence  whatso- 
ever would  be  irrelevant  and  improper.  In  Great 
Britain,  a  conspiracy  to  commit  treason  is  made  treason 
by  a  particular  statute ;  that  is,  "  compassing  the  death 
of  the  king,"  is  made  high  treason.  In  that  particular 
instance,  the  intention,  the  mere  act  of  the  mind  is 
rendered,  what  it  is  in  no  other  case  without  an  act  in 
pursuance  of  it,  criminal  and  punishable.  In  that  case, 
which  is  in  fact  a  conspiracy  to  commit  treason,  the  in- 
tention of  the  heart,  the  formation  of  the  design  in  the 
mind,  is  the  very  crime  ;  and  the  correct  mode  of  pro- 
cedure on  a  trial  for  it,  would  be  to  begin  to  show  the 
conspiracy,  the  number  of  persons  engaged  in  it,  the 
time  when,  and  place  where,  they  did  conspire,  and  other 
circumstances  connected  with  the  conspiracy  ;  but  this 
applies  only  to  a  prosecution  on  an  indictment  for  com- 
passing the  death  of  the  king.  In  every  other  case, 
where  a  material  act  constitutes  the  crime,  the  prosecu- 
tor must  begin  by  proving  that  act,  either  by  positive 
testimony,  or  strong  circumstances,  to  show  that  the 
party  accused  committed  it.  In  a  prosecution  for  trea- 
son for  "levying  war,"  after  the  cause  is  opened,  proof 
of  the  act  should  be  adduced,  as  is  done  in  every  other 
criminal  case.  On  a  trial  for  murder,  the  act  of  killing 
must  first  be  proved,  if  not  admitted  ;  in  a  prosecution 
for  burglary,  the  nocturnal  breaking  into  the  house  must 
be  proved  ;  in  larceny,  the  taking  and  carrying  away 
must  be  proved  ;  and  in  a  prosecution  for  robbery,  it  is 
necessary  to  prove  the  taking  by  force  and  violence  from 
the  person,  before  any  testimony  can  be  admitted  re- 
specting the  felonious  intention.  The  true  and  natural 
order  in  all  prosecutions  is  to  show  first  that  the  prin- 
cipal act  on  which  the  charge  depends  has  been  com- 
mitted. 

The  gentleman  who  opened  the  cause  argued  it  on 
the  principles  of  common  sense,  which  he  says  is  some- 
times in  discussion  not  adhered  to  by  lawyers.  Let  us 


SPEECH  OF  MR.  MARTIN.  521 

examine  whether  he  has  himself  verified  this  sentiment, 
and  how  his  doctrine  applies  to  this  case.  Does  not 
common  sense  require  that  the  act  which  is  the  very 
foundation  of  the  charge,  should  be  proved  in  the  first 
instance  ?  Would  it  not  be  absurd  to  go  into  evidence 
to  show  that  the  act  was  committed  with  a  treasonable 
intent,  without  any  testimony  to  prove  that  the  act  was 
committed  at  all?  Is  it  rational  to  inquire  into  the  de- 
sign and  intention  with  which  an  act  has  been  performed, 
without  proving  that  it  has  been  performed  ? 

The  gentleman  who  spoke  so  eloquently  against  our 
motion,  says  that  the  jury  must  judge  of  the  weight  of 
evidence,  and  that  the  court  can  not  stop  the  prosecutor 
in  his  examination  of  witnesses,  and  command  the  jury 
to  find  such  a  verdict  as  it  pleases  to  require  !  The  gen- 
eral principle  is  not  controverted  by  us,  but  we  deny  the 
inferences  which  he  has  drawn  from  it.  The  jury  are 
certainly  to  decide  on  the  weight  of  evidence,  but  the 
court  is  to  pronounce  the  law,  on  what  is  or  is  not  legal 
evidence.  Suppose  only  one  witness  were  introduced  to 
prove  the  overt  act,  and  it  were  candidly  declared  by 
the  counsel  for  the  prosecution  that  he  could  prove  it  by 
no  other  witness,  would  he  be  permitted  then  to  pro- 
ceed to  examine  the  intentions  of  the  party  accused  ? 
Would  it  not  then  be  the  duty  of  the  court  to  stop 
him,  and  tell  the  gentlemen  of  the  jury  that  there  was 
no  evidence  to  convict  the  accused  ;  that  it  would  be  in 
vain  to  proceed  further,  since  it  was  admitted  that  the 
constitutional  requisition  of  two  witnesses  to  prove  the 
overt  act,  could  not  be  complied  with  ?  We  do  not  con- 
tend that  the  court  has  a  right  to  tell  the  jury,  "  You 
must  acquit  the  party  ;"  but  it  is  undoubtedly  its  duty 
to  expound  and  enforce  the  law,  and  this  is  all  we  want 
to  be  done. 

Permit  me  again  to  recur  to  the  case  of  a  trial  for  mur- 
der. A  great  deal  of  the  time  of  the  court  might  be 
taken  up  to  prove  malice  on  the  part  of  the  person  in- 
dicted, when  in  truth  no  act  could  be  proved,  when  it 
did  not  and  could  not  appear  that  the  man  supposed  to 
have  been  murdered  was  actually  dead!  This  would  be 
a  fruitless  waste  of  time.  If  there  be  no  evidence  that 
the  man  is  dead,  there  ought  to  be  no  inquiry  into  the 


522  TRIAL   OF  AARON   BURR. 

design  inducing  the  commission  of  the  overt  act,  the  act 
of  killing.  If  the  death  be  proved,  then  the  intention 
and  other  circumstances  are  to  be  examined,  and  the 
jury  must  decide  whether  he  be  guilty  or  not.  This  is 
the  natural  and  legal  order  of  proceeding  in  criminal 
prosecutions.  Hardy's  case  confirms  and  establishes  the 
propriety  of  this  mode  of  proceeding.  The  first  in- 
quiry on  that  trial  was  respecting  the  act  charged  in  the 
indictment. 

Thus,  if  A.  were  indicted  for  killing  B.  would  the 
legal  order  be  to  prove,  in  the  first  instance,  that  long 
and  frequent  animosities  had  existed  between  them  ? 
The  counsel  for  the  prosecution  must  first  prove  that  B. 
has  been  killed  by  somebody.  If  there  be  any  doubt  as 
to  the  person  who  killed  him,  it  must  be  proved  who  did 
kill  him.  If  it  be  proved  that  A.  killed  B.,  then,  and  not 
till  then,  more  evidence  is  necessary  to  explain  the  mo- 
tives and  circumstances  of  the  killing  ;  because  the  law 
presumes  prima  facie,  that  a  man  who  kills  another, 
does  it  with  malice  prepense,  and,  therefore,  he  must 
take  off  by  his  proof  this  presumption  of  the  law.  In 
the  case  of  larceny,  as,  for  instance,  for  horse  stealing, 
you  prove  the  horse  to  have  been  taken  from  the  owner, 
and  found  in  possession  of  the  party  accused.  After  prov- 
ing the  principal  fact,  you  go  into  evidence  of  the  inten- 
tion with  which  the  horse  was  taken.  Does  the  public 
prosecutor  go  into  proof  of  the  felonious  intention  before 
proving  that  the  horse  has  been  taken  ?  So  in  the  case  of 
burglary,  is  it  the  natural  order  of  testimony  to  prove 
that  the  accused  intended  to  break  and  enter  into  the 
house,  in  the  night  time,  to  steal  or  to  commit  any  other 
felony?  Is  it  not  the  most  natural  order,  to  prove  first, 
that  he  did  actually  break  and  enter  the  house,  and  then, 
by  evidence,  to  show  that  he  entered  with  no  other  view 
than  to  commit  a  felony.  So  on  a  trial  for  treason,  for 
importing  false  or  base  foreign  coin,  knowing  it  to  be 
such,  does  the  prosecutor  first  call  witnessess  to  prove, 
that  the  prisoner  knew  the  coin  to  be  base  ?  Does  he 
not  first  prove  the  importation  ?  Would  it  not  be  pre- 
posterous to  go  into  proof  of  his  knowledge  of  its  base- 
ness, without  proving  that  he  imported  it  ?  The  same 
remark  applies  to  a  prosecution  for  passing  false  orcoun- 


SPEECH  OF  MR.  MARTIN.  523 

terfeit  coin,  knowing  it  to  be  false  or  counterfeit.  Would 
not  the  prosecutor  first  prove  that  he  passed  it,  and  then 
show  by  testimony,  that  he  knew  it  to  be  base  when  he 
passed  it?  In  both  cases,  he  first  proves  the  principal 
fact,  without  which  all  other  testimony  would  be  useless  ; 
and  then  proves  the  circumstances  which  show  that  the 
prisoner  must  have  known  the  money  to  be  base  when 
he  imported  or  passed  it.  They  charge  us  with  having 
committed  treason  in  "levying  war"  against  the  United 
States.  This  charge  is  too  vague,  and  must  be  sup- 
ported by  full  testimony  according  to  the  well  known 
principles  of  the  law.  Here  let  me  mention,  that  the 
question,  whether  any  other  act  committed  at  a  time  and 
place  different  from  those  stated  in  the  indictment  can 
be  introduced  in  evidence  on  this  trial,  is  a  distinct  ques- 
tion from  that  now  before  the  court  ;  which  is  merely, 
what  is  the  proper  order  of  introducing  the  evidence  in 
support  of  the  indictment  ? 

Let  me  advert  to  the  case  of  Hardy.  It  was  an  in- 
dictment for  compassing  the  death  of  the  king,  which  as 
I  have  already  mentioned,  is  distinguishable  from  all 
other  cases  in  this,  that  the  intention  constitutes  the 
crime.  In  that  case,  "  what  is  the  natural  and  lucid 
order  "  of  evidence,  is  expressly  laid  down.  There  were 
several  persons  prosecuted  in  the  same  indictment.  It 
charged  them,  "  First,  with  a  conspiracy  to  compass  or 
effect  the  king's  death.  Secondly,  with  endeavoring  to 
effect  that  object,  by  means  of  an  insurrection,  or  incit- 
ing the  insurrection  with  that  settled  design."  The 
court  determined  that  the  legal  order  of  proceeding  and 
admitting  evidence,  after  having  proved  the  existence  of 
the  conspiracy,  was  to  prove  the  connection  of  the  per- 
,son  accused  with  the  conspirators  ;  and  then  to  charge 
him  with  the  acts  of  the  conspirators ;  that  after  proving 
his  connection  with  them,  he  was  liable  to  be  charged' 
with  any  of  their  acts.  In  that  case,  the  intention  con- 
stituted the  crime,  and  the*  connection  between  the  con- 
spirators was  first  proved,  before  the  acts  of  one  were 
admitted  to  be  given  in  evidence  against  another.  But 
this  mode  of  proceeding  is  only  admitted  in  the  case  of 
a  conspiracy,  or  an  indictment  for  imagining  and  com- 
passing the  king's  death.  But  in  an  indictment  "  levy- 

t 


524  TRIAL   OF   AARON  BURR. 

ing  war,"  the  acts  of  one  person  have  never  been  ad- 
mitted to  be  given  in  evidence  against  another;  the 
overt  acts  must  be  ptoved  against  every  individual  ac- 
cused. This  distinction  has  been  established  by  a  series 
of  determinations  of  the  most  able  and  correct  judges. 
But  if  the  acts  of  one  can  not  be  charged  or  given  in 
evidence  against  another,  much  less  can  his  words  or 
declarations.  Sir,  the  declarations  of  the  party  accused 
are  not  legal  evidence  against  him.  Here  they  have 
brought  witnessess  from  remote  parts  of  the  union,  to 
prove  the  declarations  of  Mr.  Burr.  I  contend,  that  till 
an  act  of  war  shall  have  been  proved,  these  declarations 
are  utterly  inadmissible  against  him.  The  gentlemen 
admit  themselves  that  they  are  improper,  unless  as  corro- 
borative evidence  :  because  the  constitution  requires  that 
the  confession  of  the  person  accused  shall  be  in  open 
court,  before  a  conviction  shall  follow.  I  am  convinced, 
that  all  the  declarations  in  the  world  can  only  be  re- 
ceived as  corroborative  evidence  of  facts  proved  within 
the  district.  I  do  not  wish  to  enlarge  the  question,  or  to 
waste  the  time  of  the  court  in  discussing  questions  touch- 
ing acts  committed  out  of  the  district,  or  declarations 
explanatory  of  them.  If  any  such  evidence  should  be 
offered  in  the  progress  of  this  investigation,  the  court 
will  of  course  stop  it. 

I  agreed  with  the  attorney  of  the  United  States,  in 
expressing  my  approbation  of  some  parts  of  the  opinion 
of  Judge  Iredell,  on  the  trial  of  Fries,  which  applied  im- 
mediately to  the  case  before  the  court.  I  shall  agree, 
with  heart  and  hand,  that  no  words  or  declaration  of  a 
person  accused  of  this  crime,  ought  to  be  admitted  in 
evidence,  unless  they  are  preceded  by  proof  or  facts. 
One  part  of  his  opinion  has  an  immediate  application  to 
the  question  now  before  the  court,  where  he  says,  "  that* 
after  the  overt  act  laid  in  the  district  is  proved  by  two 
witnesses,  it  is  proper  to  go  into  evidence  to  show  the 
course  of  the  prisoner's  conduct  at  other  places,  and  the 
purpose  for  which  he  went  to  that  place  where  the  trea- 
son is  laid,  and  if  he  went  with  a  treasonable  design,  then 
the  act  of  treason  is  conclusive."  But  still  this  evi- 
dence is  improper,  till  after  the  overt  act  is  proved. 
From  another  part  of  the  same  opinion,  which  imme- 


SPEECH  OF  MR.  MARTIN.  525 

diately  follows,  in  pages  171,  172,  of  that  trial,  he  says, 
"  We  now  come  to  the  confession  of  the  prisoner,  volun- 
tarily made  before  Judge  Peters.  Here  is  a  point  of  law 
relied  on  by  the  prisoner's  counsel,  that  no  man  should 
be  convicted  of  treason,  but  on  the  evidence  of  two  wit- 
nesses, or  upon  confession  in  open  court.  This  is  the 
provision  in  England  as  well  as  here,  and  the  meaning 
is,  that  no  confession  of  the  prisoner,  independent  of 
two  witnesses,  or  without  the  facts  have  been  estab- 
lished by  two  witnesses,  should  be  sufficient  to  convict 
him ;  but  if  two  witnesses  have  proved  a  fact,  the 
confession  of  the  party  may  be  received  by  way  of 
confirmation,  of  what  has  before  been  sworn  to.  In 
former  days,  in  England,  it  was  allowed,  that  con- 
fession out  of  court,  and  the  proof  of  the  witnesses 
should  be  sufficient  to  warrant  a  conviction,  but  hap- 
pily our  constitution  would  not  admit  it,  if  an  hundred 
would  swear  to  it ;.  that  danger  is  wisely  avoided.  Evi- 
dence may  sometimes  be  given,  which  may  be  doubtful. 
and  want  corroboration."  "  But  if  the  confession  of  the 
prisoner  go  to  confirm  the  evidence,  if  sworn  to  by  two 
witnesses  at  least,  it  may  be  received:"  He  then  adds, 
what  seems  to  be  decisive  on  this  point:  ''but  unless  it 
do  go  to  corroborate  other  testimony,  I  do  not  think  it 
admissible."  This  shows  clearly,  that  the  testimony 
now  offered,  is  not  admissible  as  no  act  has  been  yet 
proved  ;  and  that  his  conduct  at  other  places,  and  the 
intention  with  which  he  went  to  the  place  where  the 
imputed  treason  is  laid,  is  not  proper  to  be  adduced  in 
evidence.  "  Confessions  out  of  court  were  formerly  ad- 
mitted;"  ''but  that  danger  is  now  wisely  avoided."  I 
am  sure,  that  if  we  were  to  go  into  an  inquiry  as  to  the 
admissibility  of  this  evidence,  the  plain  words  of  the 
constitution  ought  to  satisfy  us  at  once,  that  "  no  per- 
son shall  be  convicted  of  treason,  unless  on  the  testimony 
of  two  witnesses  to  the  same  overt  act,  or  on  confession 
in  open  court."  No  language  can  be  more  explicit.  An 
insuperable  objection  to  this  kind  of  evidence,  is,  that 
acts  committed  out  of  the  district  might  be  introduced 
by  it.  We  have  said  that  General  Eaton's  testimony 
does  not  relate  to  any  acts  committed  anywhere,  but  to 
mere  declarations  out  of  the  district.  We  sincerely 


526  TRIAL  OF  AARON  BURR. 

wish  to  avoid  any  anticipation  of  his  evidence  but,  since 
gentlemen  will  impose  it  on  us,  and  they  admit  it  to  be 
similar  to  his  ex  parte  deposition  which  has  been  al- 
ready published,  it  is  our  duty  to  insist  that  the  attorney 
for  the  United  States  shall  produce  no  evidence  of 
declarations  or  corroborative  testimony  of  any  kind,  till 
he  shall  first  prove  the  material  facts  which  admit  of 
this  confirmation.  It  is  neither  reasonable  nor  constitu- 
tional, that  acts  out  of  the  district  should  be  given  in 
evidence.  It  might  be  a  mere  waste  of  the  time  of  the 
court,  jury,  counsel  and  witnesses,  to  enter  into  a  long 
and  elaborate  examination  and  discussion,  which  would 
be  totally  irrelevant,  if  no  act  could  be  proved.  As 
the  relevancy  of  all  other  testimony  depends  on  the 
proof  of  the  act,  every  principle  of  reason  and  law  re- 
quires, that  it  should  be  first  used  as  the  foundation  of 
the  rest. 

On  the  trial  of  Fries,  the  first  witness  who  was  sworn 
was  interrogated  as  to  the  act  of  "levying  war;" 
whether  he  had  been  at  Bethlehem  at  the  time  laid  in 
the  indictment?  and  whether  he  had  seen  the  acts  com- 
mitted? that  is,  the  rescue  of  several  persons  lawfully  in 
the  custody  of  the  marshal,  and  other  acts  of  violence 
connected  with  the  rescue.  Every  other  witness  was 
interrogated  in  like  manner;  first,  as  to  the  acts  com- 
mitted; and  having  established  the  fact  that  the  accused 
had  committed  the  overt  act,  then  other  evidence  of  a 
corroborative  nature  was  introduced.  In  p.  37,  the 
examination  of  Colonel  Nichols  the  marshal  is  stated, 
and  he  particularly  describes*  the  acts  committed  by  the 
prisoner.  The  testimony  now  offered  would  be  at 
present  immaterial,  because  the  act  of  war  to  which  it 
applies  is  not  proved. 

On  this  point,  I  beg  leave  to  refer  to  the  sentiments 
of  Judge  Foster,  in  his  Crown  Law,  p.  246,  which  have 
been  commented  on  already.  After  stating  that  on  the 
trial  of  Vaugham  for  treason,  for  adhearing  to  the  king's 
enemies,  and  cruising  in  a  vessel  called  the  "  Loyal  Clen- 
carty,"  the  court  rejected  evidence  to  prove  that  he  had 
some  time  before  cut  away  the  custom-house  barge  and 
had  gone  a  cruising  in  her:  he  says,  that  "the  rule  of 
rejecting  all  manner  of  evidence,  in  criminal  prose- 


SPEECH  OF  MR.   MARTIN.  527 

cution,  that  is  foreign  to  the  point  in  issue,  is  founded 
on  sound  sense  and  common  justice.  For  no  man  is 
bound  at  the  peril  of  life  or  liberty  ;  fortune  or  reputa- 
tion, to  answer  at  once  and  unprepared,  for  every  action 
of  his  life.  Few  even  of  the  best  of  men,  would  choose 
to  be  put  to  it."  Judge  Patterson,  on  an  occasion  very 
much  like  this,  speaks  with  peculiar  force  and  propriety. 
On  the  trial  of  William  Smith,  when  the  defendant's 
counsel  moved  to  postpone  the  trial  on  account  of  the 
absence  of  some  witnesses  said  to  be  material,  "  The 
evidence  (says  he)  which  is  offered  to  a  court  must  be 
pertiment  to  the  issue,  or  in  some  proper  manner  con- 
nected with  it.  It  must  relate  and  be  applied  to  the 
particular  fact  or  charge  in  controversy,  so  as  to  consti- 
tute a  legal  ground  to  support,  or  a  legal  ground  to 
resist  the  prosecution.  For  it  would  be  an  endless  task, 
and  create  inextricable  confusion,  if  parties  were  suf- 
fered to  give  in  evidence  to  the  jury,  whatever  self-love, 
or  prejudice,  or  whim,  or  a  wild  imagination  might  sug- 
gest. This  is  an  idea  too  extravagant  to  be  entertained 
by  reflecting  and  candid  men ;  as  it  would,  if  carried 
into  practice,  quickly  prostrate  property,  civil  liberty, 
and  good  government.  Law  would  become  a  labyrinth, 
a  bottomless  pit ;  and  courts  would  be  perverted  from 
their  original  design,  and  turned  into  instruments  of  in- 
justice and  oppression.  A  line  must  be  drawn — a  line 
has  been  drawn  on  such  occasions  which  it  becomes  the 
duty  of  judges  to  pursue.  If  there  be  no  line,  anything 
and  everything  may  be  given  in  evidence.  Where  shall 
we  stop?  What  is  the  rule  which  we  find  to  be  laid 
down  for  our  guidance?  The  evidence  must  be  perti- 
nent'to  the  issue;  the  witnesses  must  be  material.  If 
the  evidence  be  not  pertinent,  nor  the  witnesses  ma- 
terial, the  court  ought  not  to  receive  either." 

A  reason  given  by  other  respectable  authors,  for 
this  doctrine  is,  that  the  jury  may  be  embarrassed 
and  perplexed  by  evidence  not  pertinent  to  the  issue: 
and  that  the  accused*  would  be  unapprised  and  with- 
out notice  of  the  charges  to  be  thus  exhibited 
against  him,  and  consequently  unprepared  to  meet  the 
evidence  which  he  is  to  resist.  He  can  not,  as  Foster 
says,  be  prepared  to  answer  at  once  for  every  action  of 


528  TRIAL   OF  AARON  BURR. 

his  life.  This  objection  applies  most  forcibly  in  this 
case,  where  the  complicated  evidence  of  one  hundred  and 
thirty-five  witnesses  is  to  be  introduced  and  considered. 
Notwithstanding  the  prejudices  and  alarm  which  have 
been  excited  in  this  country,  are  you  sure  that  they  were 
not  all  without  any  cause  to  justify  them  ?  If  Mr.  Burr's 
plans  were  most  meritorious,  predicated  on  principles  of 
an  honorable  war,  and  only  to  be  carried  on  in  the  event 
of  his  country  being  engaged  in  it,  and  with  a  view  to 
the  emancipation  of  millions  who  are  now  in  bondage, 
with  a  design  to  take  the  bonds  of  slavery  off  many  mil- 
lions, he  would  have  merited  the  applause  of  the  friends 
of  liberty  and  of  posterity.  This  I  contend  was  the 
•case;  but  his  friends  may  now  pray  that  he  may  not 
meet  the  fate  that  Washington  himself  would  have  met, 
if  the  revolution  had  not  been  established.  If  you 
should  permit  the  witnesses  to  go  into  complicated  tales 
of  schemes  and  plots  of  severing  the  union,  resting 
solely  on  the  imputed  intentions  of  the  accused  (and  yet 
the  result  of  a  long  and  elaborate  inquiry  would  be  that 
there  was  no  act  of  war),  it  would  be  worse  than  a  mere 
waste  of  time,  and  would  expose,  without  any  possible 
useful  object,  the  private  views  and  intentions  of  the 
accused  ;  prejudices  would  be  increased  ;  the  intention 
would  be  taken  for  the  deed,  under  the  influence  of  im- 
pressions not  to  be  resisted  when  the  act  itself  was  in- 
complete. The  jury  ought  not  to  be  troubled  with  evi- 
dence which  is  wholly  immaterial  till  the  overt  act  be 
proved.  I  will  ask,  whether  on  principles  of  common 
sense  any  objection  can  be  urged  against  the  production 
of  the  evidence  which  we  call  for  if  it  can  be  produced? 
What  do  we  ask?  Do  we  ask  anything  that  will  em- 
barrass the  prosecution  ?  Not  the  slightest  inconven- 
ience can  arise  from  their  producing  proof  of  the  act, 
if  there  ever  were  such  an  act.  The  ,  witnesses  who 
know  the  act  can  be  called  on,  and  their  testimony  will 
be  distinct  from  all  the  other  evidence.  What  will  be 
their  alternative  after  a  solemn  argument  ?  If  we  sus- 
tain our  position  that  the  order  of  evidence  is  part  of 
the  law  of  evidence,  and  that  before  the  intention  the 
act  itself  must  be  established,  is  it  their  purpose  to  go 
into  evidence  of  the  intention  before  the  act,  or  know- 


SPEECH  OF  MR.   MARTIN.  529 

ing  it  not  to  exist,  because  it  is  the  wish  of  the  court 
that  it  should  be  otherwise  ?  I  can  not  suppose  this  to 
be  their  purpose;  I  have  too  good  an  opinion  of  the 
gentlemen,  notwithstanding  appearances,  to  suppose  that 
they  intend  to  do  so.  But  if  it  be  so,  the  court  will  de-  ' 
cide  without  anticipating  such  conduct ;  -expecting  that 
if  the  act  exist  they  will  prove  it,  or  if  not,  that  they 
will  yield  as  they  ought. 

The  principles  of  law  and  of  convenience,  and  the 
natural  reason  of  every  man,  all  concur  in  requiring  that 
the  first  part  of  the  evidence  to  be  proved  should  be  the 
act.  If  it  be  the  first  proved,  no  inconvenience  will  re- 
sult, from  it.  The  rules  of  law  should  be  general.  If 
this  principle  of  reason  and  convenience  be  departed 
from  in  this  instance,  it  may  be  in  every  other;  and  the 
most  manifest  and  dangerous  inconveniences  in  other 
cases  (if  not  in  this)  must  result,  if  the  court  will  per- 
mit gentlemen  to  indulge  what  Judge  Patterson  calls 
"  self-love,  prejudice,  or  whim,  or  the  suggestions  of  a 
wild  imagination." 

I  will  not  omit  another  authority,  which  may  not  be 
directly  applicable  to  the  distinction  now  before  the 
court;  but  if  applicable,  it  maintains  the  same  principle 
in  directing  the  order  of  the  evidence.  1st  East's  Crown 
Law  p.  96-97  :  "  In  this,  as  in  other  cases,  founded  on 
conspiracy  or  agreement  among  several,  to  act  in  concert 
together  for  a  particular  end,  must  be  established  by 
proof,  before  any  evidence  can  be  given  of  the  acts  of 
any  person,  not  in  the  presence  of  the  prisoner,  and  this 
must  be  generally  done  by  evidence  of  the  party's  own 
acts,  and  can  not  be  collected  from  the  acts  of  others,  in- 
dependent of  his  own."  "When  the  connection  between 
the  parties  is  once  established,  of  which  the  court  must 
in  the  first  instance  judge,  previous  to  the  admission  of 
any  consequential  evidence  to  affect  the  prisoner  by  the 
acts  of  others,  to  which  he  was  not  a  party  or  privy, 
then  whatever  is  done  in  pursuance  of  that  conspiracy, 
by  one  of  the  conspirators,  though  unknown  perhaps  to 
the  rest  at  the  time,  is  to  be  considered  as  the  act  of  all." 
This  at  least  ascertains  that  the  order  of  evidence  is 
part  of  the  law  of  evidence ;  and  that  facts  may  be  im- 
portant and  material  in  one  part  of  a  prosecution,  which 

44 


530  TRIAL  OF  AARON  BURR. 

in  another  may  be  entirely  inadmissible.  As  in  the  case 
of  a  conspiracy,  before  you  can  introduce  any  testimony 
against  a  prisoner,  of  the  acts  of  any  other  of  the  con- 
spirators, you  must  prove  an  association  between  them  ; 
so  in  this  case,  before  you  are  permitted  to  introduce 
evidence  of  the  intention  being  treasonable,  you  must 
prove  an  act  of  war.  Before  you  speak  of  a  treasonable 
intention,  you  must  go  on  to  prove  the  act  which  makes 
it  so.  The  overt  act  must  be  proved  by  direct  evidence, 
and  confirmed  by  confirmatory  evidence. 

Mr.  Martin  referred  to  3  Gilbert,  8 1 6,  and  to  several 
other  authorities,  to  show  that  when  "  levying  war  "  is  the 
charge  laid  in  an  indictment  for  treason,  the  rule  of  pro- 
ceeding is  the  same  as  in  murder,  larceny,  and  burglary, 
where  the  evidence  must  rise  out  of  the  facts  first  proved, 
if  not  admitted.  He  again  referred  to  the  case  of 
the  King  v.  Vaughan,  who  was  indicted  for  treason 
in  adhering  to  the  king's  enemies,  by  cruising  against 
his  subjects,  in  the  vessel  called  the  "  Loyal  Clen- 
carty,"  and  whose  acts,  Mr.  Martin  said,  were  proved  be- 
fore any  evidence  of  any  other  kind ;  he  also  cited  the 
case  of  Demaree  and  Purchase,  who  were  indicted  for 
treason,  in  pulling  down  meeting-houses,  8  State  Trials, 
219,  and  the  case  of  the  King  v.  Messenger  and  others, 
for  pulling  down  bawdy-houses,  2  State  Trials,  585.  The 
first  proof  adduced  in  both  cases,  was  the  act  of  pulling 
down  the  houses;  in  the  former  case,  the  overt  act  was 
beginning  to  pull  down  all  conventicles  or  meeting-houses ; 
and  in  the  latter,  beginning  to  pull  down  and  destroy  all 
bawdy-houses.  The  universality  of  the  intention  con- 
stituted this  crime,  which  is  a  species  of  treason  in  "levy- 
ing war."  The  design  to  pull  down  and  destroy  all  con- 
venticles and  all  bawdy-houses,  evidenced  by  the  open 
deed  of  beginning  to  pull  down  and  destroy,  was 
made  treason  by  the  statute ;  and  although  there 
could  be  no  treason  without  this  universal  intention,  yet 
no  proof  of  their  intention,  or  of  their  declarations  on 
the  subject,  was  ever  attempted  to  be  introduced,  till  the 
fact  of  beginning  to  pull  down  and  destroy  was  first  es- 
tablished. Mr.  Martin  insisted,  that  nothing  was  more 
consonant  to  common  sense,  than  to  prove  the  act  before 
the  4<  quo  animo ;"  that  until  the  overt  act  were  estab- 


OPINION  AS    TO   ORDER   OF  EVIDENCE.  531 

lished,  and  the  time  and  place  of  its  commission  were 
fixed,  it  was  impossible  for  the  court  or  jury  to  deter- 
mine with  correctness  and  propriety,  the  "  quo  animo," 
or  design  wherewith  it  had  been  done.  He  therefore 
hoped  that  the  prosecutor  would  not  be  permitted  to 
proceed  further  till  he  proved  some  overt  act. 

TUESDAY,  August  18,  1807. 

The  Chief  Justice  pronounced  the  following  opinion, 
on  the  question  last  argued,  relative  to  the  order  of  evi- 
dence. 

Although  this  is  precisely  the  same  question  relative 
to  the  order  of  evidence,  which  was  decided  by  this  court, 
on  the  motion  to  commit,  yet  it  is  now  presented  under 
somewhat  different  circumstances,  and  may,  therefore, 
not  be  considered  as  determined  by  the  former  decision. 
At  that  time  no  indictment  was  found,  no  pleadings  ex- 
isted, and  there  was  no  standard  by  which  the  court  could 
determine  the  relevancy  of  the  testimony  offered,  until 
the  fact  to  which  it  was  to  apply  should  be  disclosed. 
There  is  now  an  indictment  specifying  the  charge  which 
is  to  be  proved  on  the  part  of  the  prosecution  ;  there  is 
an  issue  made  up  which  presents  a  point  to  which  all  the 
testimony  must  apply,  and  consequently  it  is  in  the  pow- 
er of  the  court  to  determine,  with  some  accuracy,  on  the 
relevancy  of  the  testimony  which  may  be  offered. 

It  is  contended  in  support  of  the  motion  which  has 
been  made,  that,  according  to  the  regular  order  of  evi- 
dence and  the  usage  of  courts,  the  existence  of  the  fact 
on  which  the  charge  depends  ought  to  be  shown,  before 
any  testimony  explanatory  or  confirmatory  of  that  fact 
can  be  received.  Against  the  motion,  it  is  contended 
that  the  crime  alleged  in  the  indictment  consists  of  two 
parts,  the  fact  and  the  intention  ;  that  it  is  in  the  discre- 
tion of  the  attorney  for  the  United  States,  first  to  adduce 
the  one  or  the  other ;  and  that  no  instance  has  ever  oc- 
curred of  the  interference  of  a  court  with  that  arrange- 
ment which  he  has  thought  proper  to  make. 

As  is  not  unfrequent,  the  argument  on  both  sides  ap- 
pears to  be,  in  many  respects,  correct.  It  is  the  most 
useful  and  appears  to  be  the  natural  order  of  testimony 


532  TRIAL    OF  AARON  BURR. 

to  show,  first,  the  existence  of  the  fact  respecting  which 
the  inquiry  is  to  be  made.  It  is  unquestionably  attended 
with  this  advantage,  there  is  a  fixed  and  certain  object 
to  which  the  mind  applies  with  precision  all  the  testimony 
which  may  be  received,  and  the  court  can  decide  with  less 
difficulty  on  the  relevancy  of  all  the  testimony  which 
may  be  offered ;  but  this  arrangement  is  not  clearly  shown, 
to  be  established  by  any  fixed  rule  of  evidence,  and  no 
case  has  been  adduced  in  which  it  has  been  forced  by  the 
court  on  the  counsel  for  the  prosecution. 

On  one  side  it  has  been  contended  that  by  requiring 
the  exhibition  of  the  fact  in  the  first  instance,  a  great 
deal  of  time  may  be  saved,  since  there  may  be  a  total 
failure  of  proof  with  respect  to  the  fact  :  and  this  argu- 
ment has  been  answered  by  observing,  that  should  there 
even  be  such  failure,  they  could  not  interpose  nor  arrest 
the  progress  of  the  cause,  but  must  permit  the  counsel 
for  the  prosecution  to  proceed  with  that  testimony  which 
is  now  offered. 

Levying  of  war  is  a  fact  which  must  be  decided  by  the 
jury.  The  court  may  give  general  instructions  on  this, 
as  on  every  other  question  brought  before  them,  but  the 
jury  must  decide  upon  it  as  compounded  of  fact  and  law. 
Two  assemblages  of  men  not  unlike  in  appearance,  pos- 
sibly may  be,  the  one  treasonable  and  the  other  inno- 
cent. If,  therefore,  the  fact  exhibited  to  the  court  and 
jury,  should,  in  the  opinion  of  the  court,  not  amount  to 
the  act  of  levying  war,  the  court  could  not  stop  the  prose- 
cution ;  but  must  permit  the  counsel  for  the  United  States 
to  proceed  to  show  the  intention  of  the  act,  in  order  to 
enable  the  jury  to  decide  upon  the  fact,  coupled  with  the 
intention. 

The  consumption  of  time  would  probably  be  nearly  the 
same,  whether  the  counsel  for  the  prosecution  com- 
menced with  the  fact  or  the  intention,  provided  those 
discussions,  which  respect  the  admissibility  of  evidence 
would  be  as  much  avoided  in  the  one  mode  as  in  the 
other.  The  principal  importance  which,  viewing  the 
question  in  this  light,  would  seem  to  attach  to  its  decision, 
is  the  different  impressions  which  the  fact  itself  might 
make,  if  exibited  at  the  commencement  or  the  close  of 
the  prosecution. 


OPINION  AS   TO   ORDER   OF  EVIDENCE.  533 

Although  human  laws  punish  actions,  the  human  mind 
spontaneously  attaches  guilt  to  intentions.  The  same  fact, 
therefore,  maybe  viewed  very  differently,  where  the  mind 
is  prepared  by  a  course  of  testimony,  calculated  to  im- 
press it  with  a  conviction  of  the  criminal  designs  of  the 
accused,  and  where  the  fact  is  stated  without  such  pre- 
paration. The  overt  act  may  be  such  as  to  influence  the 
opinion,  on  the  testimony  afterwards  given,  respecting 
the  intention ;  and  the  testimony  respecting  the  intention, 
may  be  such  as  to  influence  the  opinion  on  the  testimony 
which  may  be  afterwards  given  respecting  the  overt  act. 

On  the  question  of  consuming  time,  the  argument  was 
placed  in  one  point  of  view  by  the  counsel  for  the  defense, 
which  excited  some  doubt.  The  case  was  supposed  of 
one  witness  to  the  overt  act,  and  a  declaration  that  it 
could  be  proved  by  no  other.  The  court  was  asked 
whether  the  counsel  would  be  permitted  then  to  proceed 
to  examine  the  intentions  of  the  accused,  and  to  do 
worse  than  waste  the  time  of  the  court  and  jury,  by  ex- 
posing, without  a  possible  object,  the  private  views  and 
intentions  of  any  person  whatever  ? 

Perhaps  in  such  a  case  the  cause  might  be  arrested  ; 
but  th"is  does  not  appear  to  warrant  the  inference  that  it 
might  be  arrested,  because  the  fact  proved  by  the  two 
witnesses  did  not  appear  to  the  court  to  amount  to  the 
act  of  levying  war.  In  the  case  supposed,  the  declara- 
tion of  the  law  is  positive,  and  a 'point  proper  to  be  re- 
ferred to  the  court  occurs,  which  suspends  the  right  of 
the  jury  to  consider  the  subject,  and  compels  them  to 
bring  in  a  verdict  of  not  guilty.  In  such  a  case,  no  tes- 
timony could  be  relevant,  and  all  testimony  ought  to  be 
excluded.  Suppose  the  counsel  for  the  prosecution 
should  say  that  he  had  no  testimony  to  prove  the  treas- 
onable intention:  that  he  believed  confidently  the  object 
of  the  assemblage  of  men  on  Blannerhassett's  island  to 
be  innocent :  that  it  did  not  amount  to  the  crime  of 
levying  war ;  surely  it  would  be  a  wanton  and  useless 
waste  of  time  to  proceed  with  the  examination  of  the 
overt  act.  When  such  a  case  occurs,  it  can  not  be 
doubted  that  a  nolle  prosequi  will  be  entered,  or  the  jury 
be  directed  with  the  consent  of  the  attorney,  to  find  a 
"verdict  of  not  guilty. 


534  TRIAL   OF  AARON  BURR. 

It  has  been  truly  stated  that  the  crime  alleged  in  the 
indictment  consists  of  the  fact  and  of  the  intention  with 
which  that  fact  was  committed.  The  testimony  disclos- 
ing both  the  fact  and  the  intention  must  be  relevant. 
The  court  finds  no  express  rule  stating  the  order  in 
which  the  attorney  is  to  adduce  relevant  testimony,  nor 
any  case,  in-  which  a  court  has  interfered  with  the  ar- 
rangement he  has  made.  No  alteration  of  that  arrange- 
ment, therefore,  will  now  be  directed. 

But  it  is  proper  to  add  that  the  intention  which  is 
considered  as  relevant  in  this  stage  of  the  inquiry  is  the 
intention  which  composes  a  part  of  the  crime,  the  inten- 
tion with  which  the  overt  act  itself  was  committed  ;  not 
a  general  evil  disposition,  or  an  intention  to  commit  a 
distinct  fact.  This  species  of  testimony,  if  admissible 
at  all,  is  received  as  corroborative  or  confirmatory  testi- 
mony. It  does  not  itself  prove  the  intention  with 
which  the  act  was  performed,  but  it  renders  other  testi- 
mony probable  which  goes  to  that  intention.  It  is  ex- 
planatory of,  or  assistant  to,  that  other  testimony. 
Now  it  is  essentially  repugnant  to  the  usages  of  courts,  and 
to  the  declaration  of  the  books  by  whose  authority  such 
testimony  is  received,  that  corroborative  or  confirmatory 
testimony  should  precede  that  which  it  is  to  corrobo- 
rate or  confirm.  Until  the  introductory  testimony  be 
given,  that  which  is  merely  corroborative  is  not  rele-- 
vant,  and  of  consequence,  if  objected  to,  can  not  be 
admitted  without  violating  the  best  settled  rules  of 
evidence. 

This  position  may  be  illustrated  by  a  direct  application 
to  the  testimony  of  General  Eaton.  So  far  as  his  testi- 
mony relates  to  the  fact  charged  in  the  indictment,  so 
far  as  it  relates  to  levying  war  on  Blannerhassett's  island, 
so  far  as  it  relates  to  a  design  to  seize  on  New  Orleans, 
or  to  separate  by  force  the  western  from  the  Atlantic 
states,  it  is  deemed  relevant,  and  is  now  admissible ;  so 
far  as  it  respects  other  plans  to  be  exeeuted  in  the  Gity 
of  Washington,  or  elsewhere,  if  it  indicate  a  treasonable 
design,  it  is  a  design  to  commit  a  distinct  act  of  treason, 
and  is,  therefore,  not  relevant  to  the  present  indictment. 
It  can  only,  by  showing  a  general  evil  intention,  render 
it  more  probable  that  the  intention  in  the  particular  case 


TESTIMONY  OF  GENERAL  EATON.        535 

was  evil.  It  is  merely  additional  or  corroborative  testi- 
mony, and  therefore,  if  admissible  at  any  time,  is  only 
admissible  according  to  rules  and  principles  which  the 
court  must  respect,  after  hearing  that  which  it  is  to  con- 
firm. 

The  counsel  will  perceive  how  many  questions  respect- 
ing the  relevancy  of  testimony,  the  arrangement  pro- 
posed on  the  part  of  the  prosecution  will  most  probably 
produce.  He  is,  however,  at  liberty  to  proceed  according 
to  his  own  judgment,  and  the  court  feels  itself  bound  to 
exclude  such  testimony  only  as,  at  the  time  of  its  being 
offered,  does  not  appear  to  be  relevant. 

GENERAL  WILLIAM  EATON  was  then  called  to  give  his 
evidence.  He  inquired  whether  he  might  be  permitted 
to  have  a  recurrence  to- his  notes? 

Chief  Justice. — Were  they  written  by  yourself? 

Mr.  Eaton. — They  were  taken  and  copied  by  me  from 
others,  which  are  at  my  lodgings. 

Mr.  Burr's  counsel  objected,  unless  he  had  the  original 
notes. 

Mr.  Wickham. — At  what  time  were  they  taken  ? 

Mr.  Eaton. — At  different  times. 

Mr.  Burr. — What  is  the  nature  of  them  ? — They  are 
nothing  but  memoranda  taken  from  notes,  which  I  made 
of  the  conversations  between  you  and  myself,  at  the 
times  when  they  passed. 

The  court  decided  that  they  were  not  admissible. 

Mr.  Eaton. — May  I  ask  one  further  indulgence  from 
the  court  ?  I  have  been  long  before  the  public.  Much 
stricture  and  some  severity  have  passed  upon  me.  May 
I,  in  stating  my  evidence,  be  permitted  to  make  some 
explanation  about  the  motives  of  my  own  conduct  ? 

Chief  Justice. — Perhaps  it  would  be  more  correct  for 
the  court  to  decide  upon  the  propriety  of  the  explana- 
tion, when  the  particular  case  occurs.  Some  cases  may 
require  it ;  and  if  any  objection  be  made  to  your  expla- 
nation, then  the  court  will  decide  upon  it. 

Mr.  Eaton. — Concerning  any  overt  act,  which  goes  to 
prove  Aaron  Burr  guilty  of  treason,  I  know  nothing. 

Mr.  Hay. — I  wish  you  to  state  to  the  court  and  jury, 
the  different  conversations  you  have  had  with  the  prisoner. 


536  TRIAL   OF  AARON   BURR. 

Mr.  Eaton. — Concerning  certain  transactions  which 
are  said  to  have  happened  at  Blannerhassett's  island,  or 
any  agency  which  Aaron  Burr  may  be  supposed  to  have 
had  in  them,  I  know  nothing.  But  concerning  Mr.  Burr's 
expression  of  treasonable  intentions,  I  know  much,  and 
it  is  to  these  that  my  evidence  relates. 

Mr.  Martin. — I  know  not  how  far  the  court's  opinion 
extends. 

Chief  Justice. — It  is  this  :  that  any  proof  of  intention 
formed  before  the^act  itself,  if  relevant  to  the  act,  may 
be  admitted.  One  witness  may  prove  the  intention  at 
one  time,  and  another  may  prove  it  at  another;  so  as  to 
prove  the  continuance  of  the  intention  throughout  the 
whole  transaction  ;  and  therefore  the  proof  of  very  re- 
mote intentions  may  be  relevant  to  this  particular  act. 

Mr.  Martin. — I  trust,  that  when  he  speaks  of  a  trea- 
sonable intention  not  applicable  to  this  act  the  court  will 
stop  him, 

Mr.  Wickham. — If  I  understand  the  opinion  of  the 
court  correctly,  it  relates  to  treason  charged  to  be  com- 
mitted in  Virginia,  and  evidence  of  acts  out  of  it  is  in- 
admissible. 

Chief  Justice. — The  intention  to  commit  this  crime, 
to  erect  an  empire  in  the  west,  and  seize  New  Orleans, 
may  be  shown  by  subsequent  events  to  have  been  con- 
tinued ;  and  facts  out  of  the  district  may  be  proved, 
after  the  overt  act,  as  corroborative  testimony. 

Mr.  Eaton. — During  the  winter  of  1805-6  (I  can  not 
be  positive  as  to  the  distinct  point  of  time;  yet  during 
that  winter),  at  the  city  of  Washington,  Aaron  Burr  sig- 
nified to  me,  that  he  was  organizing  a  military  expedi- 
tion to  be  moved  against  the  Spanish  provinces,  on  the 
south-western  frontiers  of  the  United  States  ;  I  under- 
stood under  the  authority  of  the  general  government. 
From  our  existing  controversies  with  Spain,  and  from 
the  tenor  of  the  president's  communications  to  both 
houses  of  congress,  a  conclusion  was  naturally  drawn, 
that  war  with  that  power  was  inevitable.  I  had  just  then 
returned  from  the  coast  of  Africa,  and  having  been  for 
many  years  employed  on  your  frontier,  or  a  coast  more 
barbarous  and  obscure,  I  was  ignorant  of  the  estimation 
in  which  Mr.  Burr  was  held  by  his  country.  The  distir- 


TESTIMONY  OF  GENERAL  EATON        537 

guished  rank  he  held  in  society,  and  the  strong  marks  of 
confidence  which  he  had  received  from  his  fellow-citizens, 
did  not  permit  me  to  doubt  of  his  patriotism.  As  a  mili- 
tary character,  I  had  been  made  acquainted  with  none 
within  the  United  States,  under  whose  direction  a  sol- 
dier might  with  greater  security  confide  his  honor  than 
Mr.  Burr.  In  case  of  my  country's  being  involved  in  a 
war,  I  should  have  thought  it  my  duty  to  obey  so  hon- 
orable a  call  as  was  proposed  to  me.  Under  impressions 
like  these,  I  did  engage  to  embark  myself  in  the  enter- 
prise, and  pledged  myself  to  Mr.  Burr's  confidence.  At 
several  interviews,  it  appeared  to  be  his  intention  to  con- 
vince me,  by  maps  and  other  documents,  of  the 
feasibility  of  penetrating  to  Mexico.  At  length,  from 
certain  indistinct  expressions  and  innuendoes,  I  ad- 
mitted a  suspicion  that  Mr.  Burr  had  other  projects. 
He  used  strong  expressions  of  reproach  against  the  ad- 
ministration of  the  government:  accused  them  of  want 
of  character,  want  of  energy,  and  want  of  gratitude.  He 
seemed  desirous  of  irritating  my  resentment  by  dilating 
on  certain  injurious  strictures  I  had  received  on  the  floor 
of  congress,  on  account  of  certain  transactions  on  the 
coast  of  Tripoli  ;  and  also  on  the  delays  in  adjusting  my 
accounts  for  advances  of  money  on  account  of  the 
United  States;  and  talked  of  pointing  out  to  me  modes 
of  honorable  indemnity.  I  will  not  conceal  here,  that 
Mr.  Burr  had  good  reasons  for  supposing  me  disaffected 
towards  the  government ;  I  had  indeed  suffered  much, 
from  delays  in  adjusting  my  accounts  for  cash  advanced 
to  the  government,  whilst  I  was  consul  at  Tunis,  and 
for  the  expense  of  supporting  the  war  with  Tripoli.  I 
had  but  a  short  time  before  been  compelled  ingloriously 
to  strike  the  flag  of  my  country,  on  the  ramparts  of  a 
defeated  enemy,  where  it  had  flown  for  forty-five  days. 
I  had  been  compelled  to  abandon  my  comrades  in  war, 
on  the  fields  where  they  had  fought  our  battles.  I  had 
seen  cash  offered  to  the  half  vanquished  chief  of  Tripoli 
(as  he  had  himself  acknowledged),  as  the  consideration 
of  pacification. 

Mr.  WickJiam. — By  whom  ? — By  our  negotiator,  when 
as  yet  no  exertion  had  been  made  by  our  naval  squadron 
to  coerce  that  enemy.  I  had  seen  the  conduct  of  the 


538  TRIAL   OF  AARON  BURR. 

author  of  these  blemishes  on  our  then  proud  national 
character,  if  not  commended — not  censured  ;  whilst  my 
own  inadequate  efforts  to  support  that  character  were 
attempted  to  be  thrown  into  the  shade.  To  feelings 
naturally  arising  out  of  circumstances  like  these,  I  did 
give  strong  expression.  Here  I  beg  leave  to  observe,  in 
justice  to  myself,  that  however  strong  those  expressions 
however  harsh  the  language  I  employed,  they  would  not 
justify  the  inference,  that  I  was  preparing  to  dip 
my  sabre  in  the  blood  of  my  countrymen  ;  much 
less  of  their  children,  which  I  believe  would  have 
been  the  case,  had  this  conspiracy  been  carried  into 
effect. 

\_Mr.Martin  objected  to  this  language.]  I  listened  to 
Mr.  Burr's  mode  of  indemnity  ;  and  as  I  had  by  this 
time  begun  to  suspect  that  the  military  expedition  he 
had  on  foot  was  unlawful,  I  permitted  him  to  believe 
myself  resigned  to  his  influence,  that  I  might  understand 
the  extent  and  motive  of  his  arrangements.  Mr.  Burr 
now  laid  open  his  project  of  revolutionizing  the  territory 
west  of  the  Alleghany  ;  establishing  an  independent  em- 
pire there;  New  Orleans  to  be  the  capital,  and  he  him- 
self to  be  the  chief;  organizing  a  military  force  on  the 
waters  of  the  Mississippi,  and  carrying  conquest  to  Mexico. 
After  much  conversation,  which  I  do  not  particularly 
recollect,  respecting  the  feasibility  of  the  project,  as  was 
natural,  I  stated  impediments  to  his  operations  ;  such  as 
the  republican  habits  of  the  citizens  of  that  country, 
their  attachment  to  the  present  administration  of  the 
government,  the  want  of  funds,  the  opposition  he  would 
experience  from  the  regular  army  of  the  United  States, 
stationed  on  that  frontier;  and  the  resistance  to  be  ex- 
pected from  Miranda,  in  case  he  should  succeed  in 
republicanizing  the  Mexicans.  Mr.  Burr  appeared. to 
have  no  difficulty  in  removing  these  obstacles.  He 
stated  to  me,  that  he  had  in  person  (I  think  the  preced- 
ing season)  made  a  tour  through  that  country;  that  he 
had  secured  to  his  interests  and  attached  to  his  person 
(I  do  not  recollect  the  exact  expression,  but  the  mean- 
ing, and  I  believe,  the  words  were),  the  most  distin- 
guished citizens  of  Tennessee,  Kentucky,  and  the  terri- 
tory of  Orleans  ;  that  he  had  inexhaustible  resources  and 


TESTIMONY    OF    GENERAL    EATON.      539 

funds;  that  the  army  of  the  United  States  would  act 
with  him  ;  that  it  would  be  reinforced  by  ten  or  twelve 
thousand  men  from  the  above  mentioned  states  and  ter- 
ritory ;  that  he  had  powerful  agents  in  the  Spanish  terri- 
tory, and  "  as  for  Miranda,"  said  Mr.  Burr,  facetiously, 
"  we  must  hang  Miranda."  In  the  course  of  several  con- 
versations on  this  subject,  he  proposed  to  give  me  a  dis- 
tinguished command  in  his  army;  I  understood  him  to 
say  the  second  command.  I  asked  him  who  would  com- 
mand in  chief.  He  said,  General  Wilkinson.  I  ob- 
served that  it  was  singular  he  should  count  upon  General 
Wilkinson  ;  the  distinguished  command  and  high  trust 
he  held  under  government,  as  the  commander-in-chief 
of  our  army,  and  as  governor  of  a  province,  he  would 
not  be  apt  to  put  at  hazard  for  any  prospect  of  pre- 
carious aggrandizement.  Mr.  Burr  stated  that  Gene- 
ral Wilkinson  balanced  in  the  confidence  of  his  coun- 
try; that  it  was  doubtful  whether  he  would  much 
longer  retain  the  distinction  and  confidence  he  now 
enjoyed ;  and  that  he  was  prepared  to  secure  to 
himself  a  permanency.  I  asked  Mr.  Burr  if  he  knew 
General  Wilkinson.  He  said,  yes;  and  echoed  the 
question.  I  told  him  that  twelve  years  ago  I  was  at  the 
same  time  a  captain  in  the  wing  of  the  legion  of  the 
United  States  which  General  Wilkinson  commanded,  his 
acting  brigade-major  and  aid-de-camp ;  and  that  I 
thought  I  knew  him  well.  He  asked  me  what  I  knew 
of  General  Wilkinson  ?  I  said  I  knew  General  Wilkin- 
son would  act  as  lieutenant  to  no'  man  in  existence. 
"  You  are  in  error,"  said  Mr.  Burr  ;  "  Wilkinson  will  act 
as  lieutenant  to  me."  From  the  tenor  of  much  conver- 
sation on  this  subject,  I  was  prevailed  on  to  believe  that 
the  plan  of  revolution -meditated  by  Mr.  Burr,  and  com- 
municated to  me,  had  been  concerted  with  General  Wil- 
kinson, and  would  have  his  co-operation  ;  for  Mr.  Burr 
repeatedly  and  very  confidently  expressed  his  belief 
that  the  influence  of  General  Wilkinson  with  his  army, 
the  promise  of  double  pay  and  rations,  the  ambition  of 
his  officers,  and  the  prospect  of  plunder  and  military 
achievements,  would  bring  the  army  generally  into  the 
measure.  I  pass  over  here  a  conversation  which  took 
place  between  Mr.  Burr  and  myself,  respecting  a  central 


540  TRIAL     OF    AARON    BURR. 

revolution,  as  it  is  decided  to  be  irrelevant   by  the  opin- 
ion of  the  bench. 

Mr.  Hay. — You  allude  to  a  revolution  for  overthrowing 
the  government  at  Washington,  and  of  revolutionizing 
the  eastern  states. 

I  was  passing  over  that  to  come  down  to  the  period 
when  I  supposed  he  had  relinquished  that  design,  and 
adhered  to  the  project  of  revolutionizing  the  west. 

Mr.  Wickham.  —  What  project  do  you  mean? — A 
central  general  revolution.  I  was  thoroughly  convinced 
myself,  that  such  a  project  was  already  so  far  organized 
as  to  be  dangerous,  and  that  it  would  require  an  effort  to 
suppress  it.  For  in  addition  to  positive  assurances  that 
Mr.  Burr  had  of  assistance  and  co-operation,  he  said  that 
the  vast  extent  of  territory  of  the  United  States,  west  of 
the  Alleghany  mountains,  which  offered  to  adventurers 
with  a  view  on  the  mines  of  Mexico,  would  bring  volun- 
teers to  this  standard  from  all  quarters  of  the  union.  The 
situation  which  these  communications,  and  the  impressions 
they  made  upon  me,  placed  me  in,  was  peculiarly  deli- 
cate. I  had  no  overt  act  to  produce  against  Mr.  Burr. 
He  had  given  me  nothing  upon  paper;  nor  did  I  know 
of  any  person  in  the  vicinity,  who  had  received  similar 
communications,  and  whose  testimony  might  support 
mine.  He  had  mentioned  to  me  no  person  as  principally 
and  decidedly  engaged  with  him,  but  General  Wilkinson  ; 
a  Mr.  Alston,  who,  I  afterwards  learned,  was  his  son-in- 
law;  and  a  Mr.  Ephraim  Kibby,  who  I  learnt  was  late  a 
captain  of  rangers  in  Wayne's  army.  Of  General  Wilkin- 
son, Burr  said  much,  as  I  have  stated;  of  Mr.  Alston, 
very  little,  but  enough  to  satisfy  me  that  he  was  engaged 
in  the  project ;  and  of  Kibby,  he  said  that  he  was  bri- 
gade major  in  the  vicinity  of  Cincinnati  (whether  Cincin- 
nati in  Ohio  or  in  Kentucky,  I  know  not),  who  had  much 
influence  with  the  militia,  and  had  already  engaged  the 
majority  of  the  brigade  to  which  he  belonged,  who  were 
ready  to  march  at  Mr.  Burr's  signal.  Mr.  Burr  talked  of 
this  revolution  as  a  matter  of  right,  inherent  in  the  peo- 
ple, and  constitutional;  a  revolution  which  would  rather 
be  advantageous  than  detrimental  to  the  Atlantic  states  ; 
a  revolution  which  must  eventually  take  place;  and  for 
the  operation  of  which,  the  present  crisis  was  peculiarly 


TESTIMONY    OF    GENERAL     EATON.     541 

favorable.  He  said  there  was  no  energy  to  be  dreaded 
in  the  general  government,  and  his  conversations  denoted 
A  confidence  that  his  arrangements  were  so  well  made, 
that  he  should  meet  with  no  opposition  at  New  Orleans ; 
for  the  army  and  chief  citizens  of  that  place  were  now 
ready  to  receive  him.  On  the  solitary  ground  upon 
which  I  stood,  I  was  at  a  loss  how  to  conduct  myself, 
though  at  no  loss  as  respected  my  duty.  I  durst  not 
place  my  lonely  testimony  in  the  balance  against  the 
weight  of  Mr.  Burr's  character  ;  for  by  turning  the  tables 
upon  me,  which  I  thought  any  man  capable  of  such  a 
project  was  very  capable  of  doing,  I  should  sink  under 
the  weight.  I  resolved  therefore  with  myself,  to  obtain 
the  removal  of  Mr.  Burr  from  this  country,  in  a  way  hon- 
orable to  him  ;  and  on  this  I  did  consult  him,  without 
his  knowing  my  motive.  Accordingly,  I  waited  on  the 
president  of  the  United  States,  and  after  a  desultory  con- 
versation, in  which  I  aimed  to  draw  his  view  to  the  west- 
ward, I  took  the  liberty  of  suggesting  to  the  president, 
that  I  thought  Mr.  Burr  ought  to  be  removed  from  the 
country,  because  I  considered  him  dangerous  in  it.  The 
president  asked  where  we  should  send  him  ?  Other  places 
might  have  been  mentioned,  but  I  believe  that  Paris, 
London,  and  Madrid  were  the  places  which  were  par- 
ticularly named.  The  president,  without  positive  ex- 
pression (in  such  a  matter  of  delicacy),  signified  that  the 
trust  was  too  important,  and  expressed  something  like  a 
doubt  about  the  integrity  of  Mr.  Burr.  I  frankly  told 
the  president  that  perhaps  no  person  had  stronger  grounds 
to  suspect  that  integrity  than  I  had;  but  that  I  believed 
his  pride  of  ambition  had  so  predominated  over  his  other 
passions,  that  when  placed  on  an  eminence,  and  put  on 
his  honor,  a  respect  to  himself  would  secure  his  fidelity. 
I  perceived  that  the  subject  was  disagreeable  to  the 
president,  and  to  bring  him  to  my  point  in  the  shortest 
mode,  and  at  the  same  time  point  to  Ae  danger,  I  said 
to  him  that  I  expected  that  we  should  in  eighteen  months 
have  an  insurrection,  if  not  a  revolution,  on  the  waters 
of  the  Mississippi.  The  president  said  he  had  too  much 
confidence  in  the  information,  the  integrity,  and  attach- 
ment to  the  union  of  the  citizens  of  that  country,  to  ad- 
mit any  apprehensions  of  that  kind.  The  circumstance 


542  TRIAL     OF    AARON    BURR. 

of  no  interrogatories  being  made  to  me,  I  thought  im- 
posed silence  upon  meat  that  time  and  place.  Here,  sir, 
I  beg  indulgence  to  declare  my  motives  for  recommending 
that  gentleman  to  a  foreign  mission  at  that  time  ;  and  in 
the  solemnity  with  which  I  stand  here,  I  declare  that  Mr. 
Burr  was  neutral  in  my  feelings;  that  it  was  through  no 
attachment  to  him  that  I  made  that  suggestion,  but  to 
avert  a  great  national  calamity  which  I  saw  approaching  ; 
to  arrest  a  tempest  which  seemed  lowering  in  the  west ; 
and  to  divert  into  a  channel  of  usefulness  those  consum- 
mate talents  which  were  to  "mount  the  whirlwind  and 
direct  the  storm."  These,  and  these  only,  were  my  rea- 
sons for  making  that  recommendation. 

About  the  time  of 'my  having  waited  on  the  president, 
or  a  little  before  (I  can  not,  however,  be  positive  whether 
before  or  after),  I  determined  at  all  events  to  have  some 
evidence  of  the  integrity  of  my  intentions,  and  to  fortify 
myself  by  the  advice  of  two  gentlemen,  members  of  the 
house  of  representatives,  whose  friendship  and  confidence 
I  had  the  honor  long  to  retain,  and  in  whose  wisdom  and 
integrity  I  had  the  utmost  faith  and  reliance.  I  am  at 
liberty  to  give  their  names,  if  required.  1  do  not  dis- 
tinctly recollect,  but  I  believe  that  I  had  a  conversa- 
tion with  a  senator  on  the  subject.  I  developed  to  them 
all  Mr.  Burr's  plans.  They  did  not  seem  much  alarmed. 

Mr,  Martin  objected  to  the  witness  stating  any  of 
the  observations  of  other  persons  to  himself. 

After  some  desultory  conversation  between  the  coun- 
sel on  both  sides,  the  chief  justice  said  that  though 
more  time  was  wasted  by  stopping  the  witness,  than  by 
letting  him  tell  his  story  in  his  own  way,  yet  if  it  were 
required,  he  must  be  stopped  when  he  gave  improper 
testimony.  He  then  told  the  witness,  "  You  are  at 
liberty  to  vindicate  yourself,  but  declarations  of  other 
gentlemen  are  not  to  be  mentioned,  because  that  certain- 
ly would  be  improper." 

Mr.  Eaton. — I  did  ask  indulgence  of  the  court  to 
make  such  explanations,  because  perversions  of  my  con- 
duct were  before  the  public:  but  I  waive  this  indul- 
gence, contented  with  meeting  these  perversions  at 
some  other  time  and  place. 

Chief  Justice. — You  have  used  that  indulgence. 


TESTIMONY    OF    GENERAL    EATON.     543 

Mr.  Eaton. — Little  more  passed  between  Mr.  Burr 
and  myself,  relevant  to  this  inquiry,  while  I  remained  at 
Washington  ;  though  I  could  perceive  symptoms  of  dis- 
trust in  him  towards  me,  he  was  solicitous  to  engage  me 
in  his  western  plans.  I  returned  to  Massachusetts,  to 
my  own  concerns,  and  thought  no  more  of  Mr.  Burr,  or 
his  projects,  or  revolutions  until,  in  October  last,  a  letter 
was  put  into  my  hands  at  Brumfield,  from  Mr.  Belknap, 
of  Marietta,  to  T.  E.  Danielson,  of  Brumfield,  stating 
that  Mr.  Burr  had  contracted  for  boats  which  were 
building  on  the  Ohio. 

Mr.  Burr. — Have  you  that  letter? 

Mr.  Eaton. — No. 

Mr.  Burr. — It  is  improper,  then,  to  state  it. 

Mr.  Hay. — It  is  immaterial.     Mr.  Belknap  is  here. 

Mr.  Eaton. — As  to  letters,  I  have  had  no  correspon- 
dence with  Mr.  Burr.  I  was  about  to  state,  that  I  had 
made  a  communication,  through  Mr.  Granger,  to  the 
president  of  the  United  States,  stating  the  views  of  Mr. 
Burr ;  and  a  copy  of  the  letter  from  Belknap  was  trans- 
mitted to  the  department  of  state. 

Mr.  Wirt.'—  Was  there  any  conversation  between  you 
and  the  prisoner,  in  which  you  spoke  of  the  odium  at- 
tached to  the  name  of  usurper? 

Mr.  Eaton. — That  conversation  was  excluded  by  the 
opinion  of  the  court,  as  relating  to  the  central  project. 

Mr.  Hay. — Did  you  mean  to  state  that  the  honorable 
indemnity  proposed  to  you  by  the  prisoner  was  to  be  in- 
cluded in  this  plan  ? 

Mr.  Eaton. — I  understood  it  to  be  included  in  the 
perpetual  rank  and  emolument  to  be  assigned  me.  In 
his  conversations  he  declared  that  he  should  erect  a  per- 
manent government,  of  which  he  was  to  be  the  chief; 
and  he  repeated  it  so  often  that  I  could  not  have  mis- 
understood him. 

Mr.  Martin. —  Do  you  recollect  when  you  arrived  in 
Washington  ? 

Mr.  Eaton. — I  said  that  I  did  not  recollect  particularly. 
But  the  principal  part  of  these  conversations  must  have 
been  between  the  middle  of  February  and  the  latter  end 
of  March,  1806.  I  arrived  here  in  the  latter  end  of 
November,  1805,  at  Philadelphia;  and  in  December, 


544  TRIAL     OF    AARON    BURR. 

went  to  New  England,  and  afterwards  returned  ;  these 
conversations  happened  after  my  return. 

Do  you  recollect  any  particular  conduct  of  yours, 
calculated  to  put  an  end  to  Mr.  Burr's  importunities? — 
Yes.  At  some  of  our  last  interviews,  I  laid  on  his  table 
a  paper  containing  the  toast  which  I  had  given  to  the 
public,  with  an  intention  that  he  should  see  it,  but  I  do 
not  know  that  he  did  see  it,  but  I  believe  it  :  "  The 
United  States  ;  palsy  to  the  brain  that  should  plot  to 
dismember,  and  leprosy  to  the  hand  that  will  not  draw 
to  defend  our  union." 

Where  was  that  toast  drunk? — I  can  not  say.  This 
question  was  made  to  me  from  authority.  It  was  sent 
with  other  toasts  I  had  corrected,  to  a  paper  at  Spring- 
field. I  laid  this  paper  on  Mr.  Burr's  table. 

Was  it  drunk  at  any  distant  place?  At  Philadelphia? 
—I  do  not  recollect.  I  thought  at  first  it  was  at  Phila- 
delphia, but  on  reflection,  it  could  not  have  been  there  , 
but  I  had  received  many  hospitalities  throughout  the 
union;  many  of  my  toasts  were  published  ;  and  in  the 
hurry  of  passing  and  repassing,  I  have  completely  for- 
gotten. 

Mr.  Burr. — Do  you  recollect  when  you  left  Washing- 
ton ? — About  the  $th  or  6th  of  April. 

Can  you  not  be  certain  where  this  toast  was  drunk  ? 
At  Washington  or  at  Philadelphia  ? — I  am  not  certain 
when  or  where  it  was  drunk,  but  I  am  certain  it  was 
not  at  Washington,  because  I  gave  another  there  when 
called  upon. 

Did  you  say  that  all  these  conversations  happened 
between  the  middle  of  February  and  the  last  of  March  ? 
— No ;  I  did  not  say  so.  I  said  the  principal  part  of  these 
conversations  passed  in  that  interval. 

Mr.  Burr. — Did  you  sSy  the  paper  containing  that  toast 
was  laid  on  my  table  in  March? — I  can  not  tell;  it  can 
not  be  material ;  from  that  time  our  intercourse  became 
less  frequent ;  you  expressed  some  solicitude  to  keep  me 
at  your  house. 

You  say  that  this  toast  was  printed  at  Springfield? — I 
did. 

Have  you  in  your  possession  a  paper  containing  that 
toast  ? — I  have  not  here. 


TESTIMONY    OF    GENERAL .  EATON.     545 

Mr.  Martin. — Did  you  transmit  the  toast  for  publica- 
tion, and  to  what  printer? — I  do  not  recollect  dis- 
tinctly. 

You  mentioned  something  about  a  communication 
which  you  made  to  the  president,  through  the  postmas- 
ter-general. Look  at  that  paper.  Is  that  your  signature? 
--It  is;  and  I  must  give  a  short  account  of  that  paper. 
I  went  to  Springfield,  about  twenty-five  miles  distant 
from  my  place  of  residence.  Mr.  Granger  was  there  ;  I 
went  to  see  him  ;  on  my  arrival  there,  in  the  evening,  I 
understood  that  he  had  gone  out  of  town  to  his  seat  in 
the  country  ;  but  that  he  had  taken  notes  concerning 
those  transactions.  Next  morning  I  went  to  his  house ; 
he  put  into  my  hands  notes  which  he  had  got  from  Mr. 
Ely. 

Whom  were  the  notes  written  by? — By  Mr.  Granger; 
they  were  subscribed  by  him,  if  I  have  a  correct  recollec- 
tion. [Mr.  Eaton  then  mentioned  that  the  notes  on  the 
first  two  pages  were  drawn  up  by  Mr.  Granger  from  con- 
versations which  had  passed  between  Mr.  Granger  and  Mr. 
Ely,  on  certain  communications  made  to  Mr.  Ely  by  Mr. 
Eaton,  respecting  Mr.  Burr's  plans;  that  he  had  seen 
Mr.  Ely  at  Northampton,  at  the  session  of  the  court  of 
common  pleas,  at  the  time  when  they  had  first  heard  of 
the  building  of  boats  on  the  Ohio.  The  notes  on  the 
'last  page,  in  Mr.  Granger's  writing,  and  subscribed  by 
himself,  were  from  subsequent  conversations  between  him 
and  Mr.  Granger.] 

How  many  days'  traveling  is  it  by  the  stage  from  Spring- 
field to  Washington? — Not  more  than  five. 

Mr.  Burr. — You  spoke  of  accounts  with  the  govern- 
ment. Did  you,  or  the  government,  demand  money? — 
They  had  no  demand  on  me  ;  I  demanded  money  of 
them. 

Did  they  state  in  account  a  balance  against  you  ? — I 
expended  money  for  the  service  of  the  United  States, 
when  employed  las  consul  at  Tunis,  an  account»of  which 
being  presented  to  the  accounting  officers  of  the  treasury, 
they,  I  was  told,  had  no  legal  discretion  to  settle  it.  As 
there  was  no  law  to  authorize  this  adjustment,  I  did  refer 
to  the  congress  of  1803-4.  A  committee  had  reported 
on  my  claims,  favorably,  as  I  supposed ;  then  my  accounts 
I.— 35 


546  TRIAL     OF    AARON    BURR. 

were  left ;  when  I  went,  however,  to  the  coast  of  Barbary, 
and  when  I  returned  after  eighteen  months,  I  renewed 
my  claim  to  the  congress.  I  found  that  new  difficulties 
had  occurred  to  prevent  an  adjustment.  Leaving  out 
the  sums  I  had  advanced,  the  government  had  a  consid- 
erable balance  against  me.  Some  comments  were  made 
by  a  member  from  New  York,  which  I  thought  deroga- 
tory to  my  character  ;  but  the  balance  was  in  my  favor. 
The  last  session  of  congress  left  them  to  the  accounting 
officers  to  settle  according  to  equity.  It  has  been  since 
settled  and  paid. 

Mr.  Martin.— Did  not  Mr.  Burr  confine  his  plans  to  at- 
tack the  Spanish  provinces,  for  the  most  considerable 
part  of  the  time,  to  the  event  of  a  war  with  Spain  ? — Not 
for  the  most  considerable  part  of  the  time,  but  for  some 
time. 

Mr.  Martin  asked  him  some  questions  relative  to  his 
having  seen  him  accompanied  by  his  step-daughter  and 
another  lady  and  a  gentleman,  at  Georgetown  and  Alex- 
dria,  about  the  time  he  had  spoken  of;  and  whether  he 
had  given  the  toast  then,  when  together  in  the  same 
room  ? — He  admitted  that  he  had  seen  him  when  so  ac- 
companied, but  was  not  positive  when  or  where  the  toast 
was  given. 

Mr.  Martin. — What  balance  did  you  receive  ? — That  is 
my  concern,  sir. 

Mr.  Burr. — What  was  the  balance  against  you  ? 

Mr.  Eaton  (to  the  court). — Is  that  a  proper  question  ? 

Mr.  Burr. — My  object  is  manifest ;  I  wish  to  show  the 
bias  which  has  existed  on  the  mind  of  the  witness. 

Chief  Justice  saw  no  objections  to  the  question. 

Mr.  Eaton. — I  can  not  say  to  a  cent  or  a  dollar  ;  but  I 
have  received  about  ten  thousand  dollars. 

Mr.  Burr. — When  was  the  money  received  ? — About 
March  last. 

You  mentioned  Miranda.  Where  did  you  understand 
he  was  gone  to  ? — On  the  benevolent  project  of  revolu- 
tionizing the  Spanish  provinces. 

What  part  of  them  ? — Caraccas.  I  had  some  reason 
too  to  know  something  of  that  project ;  because  I  too' 
was  invited  to  join  in  that.  He  too  was  to  have  been  an 
emperor  ;  he  might  have  been  troublesome  to  us  ;  and 


EVIDENCE    OF    GENERAL    EATON.      547 

of  course  when  I  asked  you  what  was  to  be  done  with 
him,  you  observed  "  hang  him." 

Did  you  understand  that  I  was  to  do  all  at  once  ;  to 
execute  the  central  project  too,  as  well  as  that  in  the 
west? — I  have  no  objection  to  answering  that;  but  it 
will  be  nothing  in  your  favor.  When  Mr.  Burr  was 
,  speaking  of  a  central  revolution,  not  much  was  said  about 
his  revolution  in  the  west.  Had  the  other  been  effected, 
I  doubt  much  whether  you  would  have  been  willing  to 
have  separated  that  part. 

You  spoke  of  a  command  ? — You  stated,  what  I  have 
already  mentioned,  that  you  were  assured,  from  the  ar- 
rangements which  you  had  made,  that  an  army  would  be 
ready  to  appear,  when  you  went  to  the  waters  of  the 
western  country.  I  recollect  particularly  the  name  of 
Ephraim  Kibby,  who  had  been  a  ranger  in  General 
Wayne's  army.  You  asked  me  about  his  spirit.  You 
gave  me  to  understand  that  his  brigade  was  ready  to  join 
you,  and  that  the  people  also  in  that  country  were  ready 
to  engage  with  you  in  the  enterprise.  You  spoke  of 
your  riflemen,  your  infantry,  your  cavalry.  It  was  with 
the  same  view,  you  mentioned  to  me  that  that  man 
[pointing  to  General  Wilkinson,  just  behind  him]  was  to 
have  been  the  first  to  aid  you  ;  and  from  the  same  views 
you  have  perhaps  mentioned  me. 

Mr.  Martin  objected  to  the  witness  interposing  his 
own  opinions  in  this  manner. 

Mr.  Hay. — Some  allowance  is  to  be  made  for  the  feel- 
ings of  a  man  of  honor. 

Mr.  Eaton,  bowing,  apologized  to  the  court  for  the 
warmth  of  his  manner. 

Mr.  Burr. — You  spoke  of  my  revolutionizing  the  wes- 
tern states.  How  did  you  understand  that  the  union 
was  to  be  separated? — Your  principal  line  was  to  be 
drawn  by  the  Alleghany  mountains.  You  were  persuaded 
that  you  had  secured  to  you  the  most  considerable  citi- 
zens of  Kentucky  and  Tennessee ;  but  expressed  some 
doubts  about  Ohio  ;  I  well  recollect  that,  on  account  of 
the  reason  which  you  gave — that  they  were  too  much  of 
a  plodding,  industrial  people  to  engage  in  your  enter- 
prise. 

How  was  the  business  to  be  effected? — I  understood 


548  TRIAL    OF    AARON    BURR. 

that  your  agents  were  in  the  western  country  ;  that  the 
army  and  the  commander-in-chief  were  ready  to  act  at  your 
signal ;  and  that  these,  with  the  adventurers  who  would 
join  you,  would  compel  the  states  to  agree  to  a  separa- 
tion. Indeed,  you  seemed  to  consider  New  Orleans  as 
already  yours,  and  that  from  this  point  you  would  send 
expeditions -into  the  other  provinces;  make  conquests, 
and  consolidate  your  empire. 

Was  it  after  all  this  that  you  recommended  me  to  the 
president  for  an  embassy  ? — Yes  ;  to  remove  you,  as  you 
were  a  dangerous  man,  because  I  thought  it  the  only 
way  to  avert  a  civil  war. 

Did  you  communicate  this  to  me,  and  what  did  I  say? 
—Yes  ;  you  seemed  to  assent  to  the  proposition. 

What  had  become  of  your  command  ? — That  I  had 
disposed  of  myself. 

Did  you  understand  that  you  had  given  me  a  definite 
answer? — No  ;  after  you  had  developed  yourself,  I  deter- 
mined to  use  you,  until  I  got  everything  out  of  you  ;  and 
on  the  principle  that,  "  when  innocence  is  in  danger,  to 
break  faith  with  a  bad  man  is  not  fraud  but  virtue." 

Did  you  think  that  your  proposition,  as  to  a  foreign 
embassy,  which  was  so  incompatible  with  my  own  plans, 
would  be  received  by  me  with  indifference,  had  I  aban- 
doned the  project? — You  seemed  to  me  to  want  some 
distinguished  place  :  as  to  the  mode  you  were  indifferent : 
and  you  seemed  to  acquiesce  in  the  plan  of  a  foreign 
embassy. 

Mr.  Hay.-r- You  said  that  you  received  about  ten  thou- 
sand dollars  from  the  government,  in  consequence  of  a  law 
passed  for  the  purpose.  The  act  of  congress  did  not 
give  you  a  definitive  sum. — The  act  of  congress  gave 
the  accounting  officers  the  power  of  settling  with  me,  on 
equitable  principles,  under  the  inspection  of  the  secre- 
tary of  state,  under  whose  department  I  had  served  ; 
and  the  settlement  was  accordingly  made. 

COMMODORE  TRUXTUN  was  then  sworn. 

Mr.  Hay. — Were  you  present  when  the  court  delivered 
its  opinion? — I  was.  I  know  nothing  of  overt  acts,  trea- 
sonable designs  or  conversations,  on  the  part  of  Mr.  Burr. 

Here  Mr.    Hay,  the   attorney  for  the  United  States, 


EVIDENCE  OF  COMMODORE  TRUXTUN.  549 

seemed  to  doubt  whether  the  evidence  of  the  commo- 
dore applied  to  this  charge,  and  to  be  indisposed  to  ex- 
amine him. 

Mr.  Wickham  then  observed  that  he  would  put  two 
questions  to  him.  1st.  Whether  he  had  not  frequent 
and  considerable  conversations  with  Mr.  Burr,  con- 
cerning the  Mexican  expedition?  2nd.  Whether  in  any 
of  those  conversations  he  ever  heard  him  say  anything 
of  a  treasonable  design? 

Mr.  Hay  objected  to  his  examination  at  this  time, 
and  Mr.  Wickham  insisted  on  it. 

Mr.  Wirt  contended  that  the  attorney  had  the  right 
to  examine  the  witness  or  not,  at  this  time,  as  he 
thought  proper  ;  that  the  court  would  recollect,  that 
there  were  two  indictments  against  the  prisoner  ;  the 
one  for  high  treason,  now  in  discussion  before  the  court, 
and  the  other  for  a  misdemeanor  (under  the  act  of  con- 
gress) for  preparing  an  expedition  against  the  Spanish 
provinces  ;  that  the  witnesses  were  summoned  promis- 
cuously to  support  both  charges ;  that  the  attorney 
could  not  ascertain  what  witnesses  supported  each  in- 
dictment without  inquiring  of  themselves  ;  and  what  he 
now  asked  the  witness,  ought  to  be  considered  merely 
as  an  inquiry  to  which  of  the  two  indictments  his  evi- 
dence related ;  and  that  his  evidence  was  deemed  very 
material  on  the  second  indictment,  though  not  on  the 
first. 

Mr.  Hay  said  that  on  reflection  he  had  no  doubt  the 
testimony  of  Commodore  Truxtun  would  have  a  direct 
bearing  on  the  subject  now  before  the  court,  when  con- 
nected with  the  other  evidence  in  the  cause ;  that  it 
would  appear  that  there  was  an  intimate  connection  be- 
tween the  two  projects,  the  seizure  of  New  Orleans  and 
the  attack  on  Mexico  ;  he  would  therefore  examine  him 
now  and  propound  this  question.  Have  you  not  had 
several  conversations  with  the  accused  concerning  the 
Mexican  expedition  ? — About  the  beginning  of  the 
winter  of  1805-6,  Mr.  Burr  returned  from  the  western 
country  to  Philadelphia.  He  frequently,  in  conversation 
with  me,  mentioned  the  subject  of  speculations  in  west- 
ern lands,  opening  a  canal  and  building  a  bridge.  Those 
things  were  not  interesting  to  me  in  the  least,  and  I  did 


550  TRIAL     OF    AARON    BURR. 

not  pay  much  attention  to  them.  Mr.  Burr  mentioned 
to  me  that  the  government  was  weak,  and  he  wished  me 
to  get  the  navy  of  the  United  States  out  of  my  head  ; 
that  it  would  dwindle  to  nothing;  and  that  he  had 
something  to  propose  to  me  that  was  both  honorable 
and  profitable;  but  I  considered  this  as  nothing  more 
than  an  interest  in  his  land  speculations.  His  conver- 
sations were  repeated  frequently.  Some  time  in  July, 
1806,  he  told  me  that  he  wished  to  see  me  unwedded 
from  the  navy  of  the  United  States,  and  not  to  think 
more  of  those  men  at  Washington  ;  that  he  wished  to 
see  or  make  me  (I  do  not^recollect  which  of  those  two 
terms  he  used)  an  admiral ;  that  he  contemplated  an  ex- 
pedition to  Mexico,  in  the  event  of  a  war  with  Spain, 
which  he  thought  inevitable.  He  asked  me  if  the 
Havana  could  be  easily  taken  in  the  event  of  a  war?  I 
told  him  that  it  would  require  the  co-operation  of  a 
naval  force.  Mr.  Burr  observed  to  me,  that  that  might 
be  obtained.  He  asked  me  if  I  had  any  personal  knowl- 
edge of  Carthagena  and  La  Vera  Cruz,  and  what  would 
be  the  best  mode  of  attacking  them  by  sea  and  land  ?  I 
gave  him  my  opinion  very  freely.  Mr.  Burr  then  asked 
me  if  I  would  take  the  command  of  a  naval  expedition  ? 
I  asked  him  if  the  executive  of  the  United  States  were 
privy  to,  or  concerned  in  the  project  ?  He  answered 
emphatically  that  he  was  not.  I  asked  that  question, 
because  the  executive  had  been  charged  with  a  knowl- 
edge of  Miranda's  expedition  ;  I  told  Mr.  Burr  that  I 
would  have  nothing  to  do  with  it ;  that  Miranda's  pro- 
ject had  been  intimated  to  me,  but  I  declined  to  have 
anything  to  do  with  such  affairs.  He  observed  to  me, 
that  in  the  event  of  a  war,  he  intended  to  establish  an 
independent  government  in  Mexico  ;  that  Wilkinson, 
the  army,  and  many  officers  of  the  navy  would  join.  I 
told  Mr.  Burr  that  I  could  not  see  how  any  officer  of 
the  United  States  could  join.  He  said  that  General 
Wilkinson  had  projected  the  expedition,  and  he  had  ma- 
tured it ;  that  many  greater  men  than  Wilkinson  would 
join,  and  that  thousands  to  the  westward  would  join. 

Mr.  Hay. — Do  you  recollect  having  asked  him  whether 
General  Wilkinson  had  previously  engaged  in  it  ? — He 
said  yes,  and  many  greater  men  than  Wilkinson. 


EVIDENCE  OF  COMMODORE  TRUXTUN.  551 

Mr.  Hay. — I  will  ask  you  whether,  at  that  time,  you 
were  in  the  service  of  the  United  States  ? — I  was  declared 
not  to  be. 

Mr.  Hay. — I  do  not  wish  to  hurt  your  feelings,  but 
merely  to  show  to  the  jury  the  state  you  were  in. 

Commodore  Truxtun. — Mr.  Burr  again  wished  me  to 
take  a  part,  and  asked  me  to  write  a  letter  to  General 
Wilkinson  ;  that  he  was  about  to  despatch  two  couriers 
to  him.  I  told  him  that  I  had  no  subject  to  write  about, 
and  declined  writing.  Mr.  Burr  said  that  several  officers 
would  be  pleased  at  being  put  under  my  command.  He 
spoke  highly  of  Lieutenant  Jones,  and  asked  me  if  he  had 
sailed  with  me  ?  I  told  him  that  he  had  not,  and  that  I 
could  give  him  no  account  of  Mr.  Jones,  having  never 
seen  him  to  my  knowledge.  He  observed  that  the  ex- 
pedition could  not  fail ;  that  the  Mexicans  were  ripe  for 
revolt;  that  he  was  incapable  of  anything  chimerical,  or 
that  would  lead  his  friends  into  a  dilemma.  He  showed 
me  the  draught  of  a  periauger  or  kind  of  boat  that  plies 
between  Paulus-Hook  and  New 'York,  and  asked  my 
opinion  of  those  boats,  and  whether  they  were  calculated 
for  the  river  Mississippi  and  the  waters  thereof ;  and  I 
gave  him  my  opinion  that  they  were.  He  asked  me 
whether  I  could  get  a  naval  constructor  to  make  several 
copies  of  the  draught?  I  told  him  I  would.  I  spoke  to 
a  naval  constructor  and  delivered  it  to  him,  but  as  he  could 
not  finish  them  as  soon  as  Mr.  Burr  wished,  the  draught 
was  returned  to  him.  Mr.  Burr  told  me  that  he  intended 
those  boats  for  the  conveyance  of  agricultural  products 
to  market  at  New  Orleans,  and  in  the  event  of  a  war,  for 
transports.  I  knew,  and  informed  him,  that  they  were 
not  calculated  for  transports  by  sea,  nor  for  the  carrying 
of  guns ;  but  having  determined  to  have  nothing  t'o  do 
with  the  Mexican  expedition,  I  said  very  little  more  to 
him  about  those  boats  ;  but  I  very  well  recollect  what  I 
said  to  him  in  our  last  conversation  towards  the  end  of 
July.  I  told  him  that  there  would  be  no  war.  He  was 
sanguine  there  would  be  war.  He  said,  however,  that  if 
he  was  disappointed  as  to  the  event  of  war,  he  was  about 
to  complete  a  contract  for  a  large  quantity  of  land  on  the 
Washita  ;  that  he  intended  to  invite  his  friends  to  settle 
it ;  that  in  one  year  he  would  have  a  thousand  families 


552  TRIAL     OF    AARON    BURR. 

of  respectable  and  fashionable  people,  and  some  of  them 
of  considerable  property  ;  that  it  was  a  fine  country,  and 
that  they  would  have  a  charming  society,  and  in  two  years 
he  would  have  doubled  the  number  of  settlers  ;  and  being 
on  the  frontier,  he  would  be  ready  to  move  whenever  a 
war  took  place.  I  have  thus  endeavored  to  relate  the 
substance  of  the  conversations  which  passed  between  us 
as  well  as  I  can  recollect.  Though  it  is  very  possible 
that  I  have  not  stated  them,  after  such  a  lapse  of  time, 
verbatim, 

Mr.  MacRae. — Was  it  in  your  first  conversation  that 
he  told  you,  that  you  should  think  no  more  of  those  men 
at  Washington  ? — It  was  in  several. 

Was  it  not  in  July,  that  he  told  you  that  he  wished  to 
see  you  unwedded  from  the  navy  of  the  United  States, 
and  to  make  you  an  admiral  ? — That  conversation  hap- 
pened in  July.  He  wished  to  see  or  make  me  an  ad- 
miral ;  I  can  not  recollect  which. 

Mr.  Hay. — Did  not  those  conversations  take  place 
after  it  was  declared  that  you  were  no  longer  in  the  ser- 
vice of  the  United  States? — They  did. 

In  answer  to  a  question  by  Colonel  Carrington,  one  of 
the  jury,  he  again  stated  that  the  latter  conversation  was 
in  July. 

Mr.  Martin. — Was  it  not  to  the  event  of  a  war  with 
Spain  that  these  conversations  related  ? — All  his  conver- 
sations respecting  military  and  naval  subjects,  and  the 
Mexican  expedition,  were  in  the  event  of  a  war  with 
Spain.  I  told  him  my  opinion  was,  that  there  would  be 
no  war,  and  he  seemed  to  be  confident  that  there  would 
be  war. 

Mr.  MacRae. — Did  he  mention  General  Eaton  in  any 
of  those  conversations? — He  mentioned  no  person  but 
General  Wilkinson  and  Lieutenant  Jones. 

Mr.  Hay. — Had  you  not  expressed  your  dissatisfaction 
at  the  declaration  of  your  not  being  in  the  service  of  the 
Uniteti  States  ? — I  had.  The  misunderstanding  between 
the  secretary  of  the  navy  of  the  United  States  and  my- 
self took  place  in  March,  1802. 

On  cross-examination,  the  commodore  further  stated, 
that  he  had  had  several  (he  did  not  know  how  many) 
conversations  with  Mr.  Burr ;  and  that  as  well  as  he 


EVIDENCE  OF  COMMODORE  TRUXTUN.     553 

could  recollect,  it  was  about  the  latter  end  of  July,  that 
he  informed  him  that  he  was  about  concluding  a  bargain 
for  the  Washita  lands,  and  wished  also  to  see  him  un- 
wedded  from  the  navy  of  the  United  States.  He  added, 
Mr.  Burr  said,  that  after  the  Mexican  expedition,  he 
intended  to  provide  a  formidable  navy,  at  the  head  of 
which  he  intended  to  place  me  ;  that  he  intended  to  es- 
tablish an  independent  government,  and  give  liberty  to 
an  enslaved  world.  I  declined  his  propositions  to  me  at 
first,  because  the  president  was  not  privy  to  the  project. 
He  asked  me  the  best  mode  of  attacking  the  Havana, 
Carthagena,  and  La  Vera  Cruz,  but  spoke  of  no  partic- 
ular force. 

Mr.  Burr. — Do  you  not  recollect  my  telling  you  of 
the  propriety  of  private  expeditions,  undertaken  by 
individuals  in  case  of  war  ;  and  that  there  had  been  such 
in  the  late  war,  and  that  there  was  no  legal  restraint  on 
such  expeditions? 

Mr.  /foj  objected  to  this  question  as  improper. 

Mr.  Burr  insisted  on  its  propriety,  and  that  the  gen- 
tlemen for  the  prosecution  had  set  an  example  far  be- 
yond it.  . 

Commodore  Truxtun. — You  said  that  Wilkinson,  the 
army,  and  many  of  the  officers  of  the  navy  would  join, 
and  you  spoke  highly  of  Lieutenant  Jones. 

Mr.  Burr. —  Had  I  not  frequently  told  you,  and  for 
years,  that  the  government  had  no  serious  intention  of 
employing  you,  and  that  you  were  duped  by  the  Smiths? 
and  do  you  not  think  that  I  was  perfectly  correct  in  that 
opinion  ? — Yes  ;  I  know  very  well  I  was. 

Were  we  not  on  terms  of  intimacy  ?  Was  there  any 
reserve  on  my  part,  in  our  frequent  conversations  ;  and 
did  you  ever  hear  me  express  any  intention  or  sentiment 
respecting  a  division  of  the  union  ? — We  were  very  inti- 
mate. There  seemed  to  be  no  reserve  on  your  part.  I 
never  heard  you  speak  of  a  division  of  the  union. 

Did  I  not  state  to  you  that  the  Mexican  expedi- 
"tion  would  be  very  beneficial  to  this  country? — You 
did. 

Had  you  any  serious  doubt  as  to  my  intentions  to  set- 
tle those  lands? — So  far  from  that,  I  was  astonished  at 
the  intelligence  of  your  having  different  views,  contained 


554  TRIAL     OF    AARON    BURR. 

in  newspapers  received  from  the  western  country  after  you 
went  thither. 

Would  you  not  have  joined  in  the  expedition  if  sanc- 
tioned by  the  government  ? — I  would  most  readily  get  out 
of  my  bed  at  twelve  o'clock  at  night,  to  go  in  defense  ol 
my  country  at  her  call,  against  England,  France,  Spain, 
or  any  other  country. 

Mr.  Hay. — Did  the  prisoner  speak  of  commercial  spec- 
ulations ? — He  said  they  might  be  carried  on  to  advantage. 

Did  he,  in  his  conversations,  speak  of  commercial 
establishments,  in  which  he  or  his  friends  were  to  have 
an  interest? — He  spoke  of  settling  that  country,  and 
sending  produce  therefrom  to  different  parts  of  the  world, 
New  Orleans  particularly. 

Mr.  Wirt.—  Did  he  speak  of  an  independent  empire 
in  Mexico,  having  an  advantageous  connection  with  this 
country? — I  understood  him  so. 

Mr.  Mac  Rae. — Did  he  wish  to  fill  your  mind  with 
resentment  against  the  government? — I  was  pretty  full 
of  it  myself,  and  he  joined  me  in  opinion. 

Mr.  Wirt. — On  what  subject  did  Burr  wish  you  to 
write  to  General  Wilkinson  ? — General  Wilkinson  and 
myself  were  on  good  terms,  and  he  wished  me  to  corre- 
spond with  him  ;  but  I  had  no  subject  for  a  letter  to  him, 
and  therefore  did  not  write  to  him. 

Mr.  Hay. — Suppose  we  were  to  have  a  war  with 
Spain,  would  not  New  Orleans  be  a  proper  place  from 
whence  to  send  an  expedition  against  the  Spanish  prov- 
inces ?  Is  it  not  more  proper  for  that  purpose,  than  any 
other  place  in  the  western  parts  of  the  country? — Cer- 
tainly it  is  ;  but  large  ships  can  not  come  up  to  New 
Orleans  ;  small  craft  or  vessels  must  take  the  expedition 
down  the  river. 

Mr.  Parker  one  of  the  jury. — Did  you  understand  for 
what  purpose  the  couriers  spoken  of  were  to  be  sent  by 
Mr.  Burr  to  General  Wilkinson  ? — I  understood  from  him, 
that  there  was  an  understanding  between  himself  and 
General  Wilkinson,  about  the  Mexican  expedition. 

Mr.  Parker. — Was  this  expedition  only  to  be  in  the 
event  of  a  war  with  Spain? — Yes;  in  all  his  conversa- 
tions with  me  he  said  that  this  expedition  was  to  take 
place  only  in  the  event  of  a  war  with  Spain. 


EVIDENCE    OF    PETER     TAYLOR.          555 

Mr.  Parker. — Was  there  no  proposition  made  to  you 
for  such  an  expedition,  whether  there  was  war  or  not? — 
There  was  not. 

Mr.  Burr  said  that  enterprises  by  individuals  are  law- 
ful and  customary  in  cases  of  war;  and  asked  whether 
there  were  not  preparations  making  in  Philadelphia  now 
for  that  purpose. — Preparations  are  making  at  New  York, 
as  to  gun-boats  and  fortifications.  The  merchants  of 
Liverpool,  in  expectation  of  war,  build  ships  for  priva- 
teers, and  if  there  be  no  war,  they  convert  them  into 
Guineamen. 

Mr.  Mac  Rae. — Are  not  the  preparations  going  on  open- 
ly at  New  York?  Has  any  commander  been  appointed 
independent  of  the  government? — No. 

Mr.  Burr. — Did  I  not  say  that  I  had  never  seen  Lieu- 
tenant Jones? — I  do  not  recollect  that,  but  you  spoke 
highly  of  him. 

Mr.  Hay. — When  he  proposed  to  make  you  an  admiral, 
did  not  the  thought  strike  you,  how  he  was  to  accomplish 
this? 

Mr.  Botts  denied  that  Commodore  Truxtun  had  said 
that  Mr.  Burr  had  promised  to  make  him  an  admiral. 

Commodore  Truxtun. — Mr.  Burr  told  me  he  wished  to 
make  or  see  me  one  ;  I  do  not  particularly  recollect  which 
was  his  expression. 

Mr.  Hay. — From  what  quarter  of  the  world  was  the 
expedition  by  sea  to  go? — I  do  not  know.  I  did  not  ask 
him  where  it  was  to  go  from. 

Did  you  not  understand  that  you  were  to  command 
the  expedition  by  sea? — I  declined  the  offer,  and  asked 
no  questions  particularly  on  the  subject. 

Mr.  Botts. — Can  ships  be  built  secretly  in  a  corner? — 
No. 

PETER  TAYLOR  was  next  sworn. 

Mr.  Hay  asked  him  to  state  everything  he  knew  con- 
cerning the  assemblage  on  Blannerhassett's  island. 

Mr.  Botts  objected  to  this  mode  of  examination  ;•  and 
though  he  was  willing  to  accommodate  Mr.  Hay  so  far 
as  to  let  the  witness  tell  his  story  in  his  own  way,  yet  he 
would  not  consent  to  his  introducing  completely  il- 
legal testimony;  he  had  no  objection  to  the  witness 


556  TRIAL   OF  AARON  BURR. 

stating  what  Mr.  Burr  had  said,  or  the  facts  which  hap- 
pened on  the  island,  though  both  were,  strictly  speaking, 
improper  evidence  ;  but  he  would  not  agree  to  his  speak- 
ing of  the  declarations  of  Mr.  and  Mrs.  Blannerhassett. 

Mr.  Burr  said  he  waived  the  objection  at  present. 

Mr.  Hay. — This  witness  will  directly  prove  the  con- 
nection of  Burr  with  Blannerhassett,  and  with  the  assem- 
blage on  the  island. 

Peter  Taylor. — The  first  information  I  had  upon  this 
subject,  was  from  Mrs.  Blannerhassett,  when  Mr.  Blanner- 
hassett and  Mr.  Alston  were  gone  down  the  river.  The 
people  got  much  alarmed  concerning  this  business,  and 
Mrs.  Blannerhassett  sent  me  to  Lexington  after  Mr. 
Blannerhassett,  with  a  letter  to  prevent  Mr.  Burr  from 
coming  back  with  him  to  the  island.  I  went  to  Chilico- 
the,  but  I  did  not  find  Mr.  Blannerhassett  there,  and  I 
then  went  on  to  Cincinnati.  I  was  directed  to  call  at 
Cincinnati,  at  Mr.  John  Smith's,  where  I  would  find  Mr. 
Blannerhassett.  I  called  at  Mr.  Smith's  store,  where  I 
saw  his  son.  I  asked  if  Mr.  Smith  was  at  home,  he  said 
yes.  I  said  I  wanted  to  speak  to  him.  His  son  went 
and  told  him  a  man  wanted  to  see  him.  When  Mr.  Smith 
came  out,  I  inquired  for  Mr.  Burr  and  Blannerhassett,  to 
see  whether  he  could  give  any  account  of  them.  He  al- 
lowed he  knew  nothing  of  either  of  them.  He  allowed  I" 
was  much  mistaken  in  the  place.  I  said  no,  this  was 
the  right  place ;  "  Mr.  John  Smith,  storekeeper,  Cincin- 
nati." Says  I,  "  Don't  you  recollect  a  young  man  who 
came  here  some  time  ago  for  Mr.  Burr's  top  -coat  ?"  [great 
coat].  I  said:  "Sir,  I  have  lived  with  Mr.  Blannerhas- 
sett for  three  years."  When  Mr.  Smith  heard  me  talk  so 
he  knew  me,  and  took  me  upstairs  to  talk  with  me.  He 
wanted  to  know  the  news  up  our  way.  I  told  him  the 
people  had  got  alarmed.  I  told  him  that  everything  was 
in  agitation  ;  that  they  talked  about  new  settlements  of 
lands,  as  they  told  me.  He  seemed  surprised.  He  asked 
what  was  said  about  General  Wilkinson  ?  I  said  I  knew 
nothing  about  it.  He  asked  me  if  I  would  carry  a  letter 
from  him  to  Blannerhassett  ?  I  told  him  I  would  carry 
anything  so  as  it  was  not  too  burdensome;  so  he  sat 
down  and  wrote  a  letter.  He  asked  whether  1- wished  to 
drink?  for  he  charged  me  not  to  go  to  any  tavern,  lest 


TESTIMONY   OF   PETER    TAYLOR.        557 

they  should  be  asking  me  questions.  He  gave  me  liquor 
and  I  drank;  and  then  he  showed  me  a  stable,  and  told 
me  to  go  and  get  my  horse  fed  by  the  ostler,  but  not  to 
go  into  the  tavern.  I  asked  him  where' I  should  find  Mr. 
Burr  and  Blannerhassett  ?  He  said  he  expected  they 
were  at  Lexington.  I  told  him  I  supposed  af  Mr.  Jour- 
don's.  He  said  that  was  the  very  house.  When  I  got 
to  Lexington  it  was  Saturday  about  one  o'clock.  Mr. 
Jourdan  happened  to  be  in  the  street  and  knew  me.  He 
said  :  "  Peter,  your  old  master,  as  you  call  him,  is  not  in 
town."  But  he  said,  before  I  asked  him,  he  expected 
him  either  that  night  or  to-morrow  early.  He  asked  me 
what  news  in  our  parts?  and  I  told  him.  I  asked  him 
what  I  was  to  do  with  my  horse  ?  He  said  that  he  was 
to  be  put  at  the  livery  stable.  He  then  went  upstairs  and 
he  opened  a  door,  and  made  a  motion  with  his  hand,  I 
suppose  to  Mr.  Burr.  I  went  in,  and  there  was  Mr.  Burr. 
Mr.  Burr  wanted  to  know  the  news  in  our  parts.  I  began 
to  tell  him,  that  my  business  was  to  prevent  Mr.  Burr 
from  going  back  to  the  island. 

Did  you  know  Mr.  Burr  at  that  time? — I  did  not. 
He  had  bee'n  on  the  island  three  times;  but  I  did  not 
see  him.  When  I  told  Mr.  Burr  that,  says  he,  "  I  am  the 
very  man  involved  in  this  piece  of  business ;  and  you 
ought  to  tell  me  all  you  know."  I  said,  "  If  you  come 
up  our  way,  the  people  will  shoot  you."  I  told  him  it 
was  my  sincere  opinion,  that  it  was  not  safe  for  him  to 
come  up  our  way.  I  told  him  that  I  heard  several  de- 
clare, that  they  had  rather  shoot  him  than  let  it  alone, 
if  they  had  a  good  chance.  He  seemed  surprised,  that 
they  should  have  such  a  thing  in  their  heads.  I  told 
him,  I  could  not  tell  why;  and  then  I  told  him  all  about 
the  land-settlement,  but  the  people  said  all  that  was  a 
fib,  and  that  he  had  something  else  in  view.  Then  Mr. 
Burr  asked  me  what  letters  I  had  ?  I  said,  two  ;  one 
was  from  Mrs.  Blannerhassett,  and  the  other  from  John 
Smith,  of  Cincinnati.  He  asked  me  if  he  might  open 
the  letter  from  John  Smith  to  Blannerhassett,  for  he 
expected  it  was  for  him  ?  I  told  him  I  supposed  it  made 
no  difference  between  him  and  Blannerhassett,  and  he 
might.  He  broke  the  seal  open,  and  showed  me  there 
was  a  letter  enclosed  for  himself.  He  asked  me  about 


558  TRIAL     OF    AARON    BURR. 

my  wife.  I  asked  him  whether  I  might  not  go  about  the 
town.  He  said  I  might,  and  then  I  went  downstairs  and 
left  the  opened  letter  with  him.  1  then  went  to  Mr. 
Jourdan,  and  asked  him  whether  I  was  to  stay  at  his 
house,  or  go  to  a  tavern  ?  He  said  I  was  to  go  to  a  tav- 
ern, and  he  would  pay  for  me.  Mr.  Jourdan  wished  me 
to  go  next  day  to  Millersburg,  after  the  saddle-bags  left 
there  by  Mr.  Blannerhassett.  I  told  him  I  would,  and 
I  did  go.  I  left  Mrs.  Blannerhassett's  letter  with  Mr. 
Jourdan,  expecting  Blannerhassett  to  get  there  before 
me.  I  got  back  on  Monday  by  one  o'clock  ;  and  then 
Mr.  Blannerhasset  was  come  and  preparing  to  go  home. 
We  started  and  came  ten  miles  that  night.  We  stopped 
at  a  tavern.  I  went  to  see  after  the  horses,  and  he  went 
into  the  house.  There  were  people  in  the  house  who 
wanted  to  know  his  name.  He  told  them  his  name  was 
Tom  Jones.  He  came  out  and  told  me  the  people  in 
the  house  had  asked,  and  he  had  told  them  his  name  was 
Tom  Jones,  and  I  must  mind  and  not  make  no  mistake, 
but  call  him  Tom  Jones  too.  So  he  passed  by  that 
name  till  we  got  to  the  Mudlicks.  He  then  told  me 
he  was  known  there,  and  I  must  call  him  by  his  own 
name. 

When  did  these  things  happen? — All  this  was  in 
October,  1806,  I  believe.  He  then  began  to  inquire  for 
young  men  that  had  rifles ;  good  orderly  men,  that 
would  be  conformable  to  order  and  discipline.  He 
allowed  that  Mr.  Burr  and  he  and  a  few  of  his  friends,  had 
bought  eight  hundred  thousand  acres  of  land,  and  they 
wanted  young  men  to  settle  it.  He  said  he  would  give  any 
young  man  who  would  go  down  he  river,  one  hundred 
acres  of  land,  plenty  of  grog  and  victuals  while  going 
down  the  river,  and  three  months'  provisions  after  they 
had  got  to  the  end  ;  every  young  man  must  have  his 
rifle  and  blanket.  I  agreed  to  go  myself,  if  I  could  carry 
my  wife  and  family,  but  he  said  he  must  have  further 
consultation  upon  that.  When  I  got  home  I  began  to 
think,  and  asked  him  what  kind  of  seed  we  should  carry 
with  us?  He  said  we  did  not  want  any;  the  people  had 
seeds  where  we  were  going. 

Mr.  Wirt. — Of  what  occupation  were  you  on  the 
island? — A  gardener. 


TESTIMONY    OF    PETER     TAYLOR.      559 

Mr.  Wirt. — I  put  this  question  that  the  jury  might 
understand  his  last  observation. 

I  urged  that  subject  to  him  several  times  ;  at  last  he 
made  a  sudden  pause  and  said,  "  I  will  tell  you  what, 
Peter,  we  are  going  to  take  Mexico  ;  one  of  the  finest 
and  richest  places  in  the  whole  world."  He  said  that 
Mr.  Burr  would  be  the  king  of  Mexico,  and  Mrs.  Alston, 
daughter  of  Mr.  Burr,  was  to  be  the  queen  of  Mexico, 
whenever  Mr.  Burr  died.  He  said  that  Mr.  Burr  had 
made  fortunes  for  many  in  his  time,  but  none  for  him- 
self; but  now  he  was  going  to  make  something  for  him- 
self. He  said  that  he  had  a  great  many  friends  in  the 
Spanish  territory  ;  no  less  than  two  thousand  Roman 
Catholic  priests  were  engaged,  and  that  all  their  friends 
too  would  join,  if  once  he  could  get  to  them;  that  the 
Spaniards, like  the  French,  had  got  dissatisfied  with  their 
government,  and  wanted  to  swap  it.  He  told  me  that 
the  British  also  were  friends  in  this  piece  of  business,  and 
that  he  should  go  to  England,  on  this  piece  of  business, 
for  Mr.  Burr.  He  asked  me  if  I  would  not  like  to  go  to 
England.  I  said  I  should  certainly  like  to  see  my  friends 
there,  but  would  wish  to  go  for  nothing  else.  I  then 
asked  him  what  was  to  become  of  the  men  who  were 
going  to  settle  the  lands  he  talked  about  ?  Were  they  to 
stop  at  the  Red  River,  or  to  go  on  ?  He  said,  "  Oh,  by 
God,  I  tell  you  Peter,  every  man  that  will  not  conform 
to  order  and  discipline,  I  will  stab  ;  you'll  see  how  I'll  fix 
them  ;"  that  when  he  got  them  far  enough  down  the 
river,  if  they  did  not  conform  to  order  and  discipline,  he 
swore  by  God  he'd  stab  them.  I  was  astonished  ;  I  told 
him  I  was  no  soldier,  and  could  not  fight.  He  said  it 
made  no  odds ;  he  did  not  want  me  to  fight ;  he  wanted 
me  to  go  and  live  with  Mrs.  Blannerhassett  and  the 
children,  either  at  Natchez  or  some  other  place,  while  he 
went  on  the  expedition.  I  talked  to  him  again,  and  told 
him  the  people  had  got  it  into  their  heads,  that  he 
wanted  to  divide  the  union.  He  said  Mr.  Burr  and  he 
could  not  do  it  themselves.  All  they  could  do  was  to 
tell  the  people  the  consequence  of  it.  He  said  the  peo- 
ple there  paid  the  government  upwards  of  four  hundred 
thousand  dollars  a  year,  and  never  received  any  benefit 
from  it.  He  allowed  it  would  be  a  very  fine  thing  if 


560  TRIAL     OF    AARON    BURR. 

they  could  keep  that  money  among  themselves  on  this 
side  the  mountains,  and  make  locks,  and  build  bridges, 
and  cut  roads.  About  two  weeks  after  I  got  home,  he 
sent  me  to  Dr.  Bennett's,  of  Mason  county,  with  a  letter. 
He  wanted  to  know  if  Doctor  Bennett  wouldn't  sell  him 
the  arms  belonging  to  the  United  States  which  were  in  his 
charge?  If  he  could  sell  them  and  keep  himself  out  of 
danger,  he'd  give  him  a  draft  upon  his  friend  in  Kentucky 
for  payment;  if  he  could  not  sell  them  without  bringing 
himself  into  a  hobble,  he  must  send  him  word  where  they 
were  kept,  and  he  would  come  and  steal  them  away  in 
the  night.  I  delivered  the  letter.  He  gave  me  direc- 
tions to  get  it  back  and  burn  it,  for  it  contained  high 
treason.  I  was  not  to  give  the  letter  to  Doctor  Bennett, 
until  the,  doctor  promised  to  deliver  it  back,  for  me  to 
burn  it ;  for  that  it  contained  high  treason.  I  did  burn  it ; 
the  doctor  was  present. 

The  doctor  read  the  letter,  and  said  he  was  unacquaint- 
ed with  the  plot,  and  couldn't  join  in  it. 

Mr.  Hay. — Were  you  not  on  the  island  when  the  peo- 
ple were  there  ? — Yes. 

When  did  the  boats  leave  the  island  ? — It  was  contem- 
plated to  sail  on  the  6th  of  December  ;  but  the  boats 
were  not  ready  ;  they  did  not  come  till  the  loth  (Sun- 
day). Mr.  Knox  and  several  other  men  were  with  him, 
and  they  sailed  on  the  Wednesday  night  following. 

How  many  boats  were  there  ? — Four. 

How  many  men  from  the  boats  came  ashore  ? — About 
thirty. 

What  did  the  men  do  who  did  not  belong  to  the  boats  ? 
— Some  were  packing  meat ;  and  some  were  packing 
other  things. 

Mr.  Mac  Rae. — Who  went  off  on  Wednesday  night? 
— Mr.  Blannerhassett  and  Mr.  Tyler,  and  the  whole  of  the 
party. 

At  what  time  in  the  night? — About  one  o'clock. 

Did  all  that  came  down  to  the  island  go  away  ? — All 
but  one,  who  was  sick 

Mr.  Hay. — Had  they  any  guns? — Some  of  them  had  ; 
some  of  the  people  went  a-shooting.  But  I  do  not  know 
how  many  there  were. 

Mr..  J.  M.  Sheppard(&  juryman). — What  kind  of  guns  ; 


TESTIMONY  OF  GENERAL  MORGAN.     561 

rifles  or  muskets? — I  can't  tell  whether  rifles  or  muskets. 
I  saw  no  pistols  but  what  belonged  to  Blannerhassett 
himself. 

Was  there  any  powder  or  lead  ? — They  had  powder, 
and  they  had  lead  both  ;  I  saw  some  powder  in  a  long 
small  barrel,  like  a  churn ;  but  I  was  so  employed  I 
could  not  notice  particularly.  Some  of  the  men  were 
engaged  in  running  bullets;  but  I  do  not  know  how 
many. 

Mr.  Mac  Rae. — What  induced  them  to  leave  the  island 
at  that  hour  of  the  night  ? — Because  they  were  informed 
that  the  Kenawa  militia  were  coming  down  there. 

Did  you  carry  some  boxes  to   the    boats? — I    carried- 
half  a  bushel  of  candles  and  some  brandy  ;  several  boxes 
were  carried,  but  I  knew  not  what  they  contained,  and  a 
great  many  things  besides,  of  which  I  knew  nothing. 

Mr.  Hay. — Were  you  on  the  island  when  they  went 
off? — Yes.  They  held  a  council  at  the  foot  of  the  pier, 
to  determine  which  was  the  best  way  to  go.  Mr.  Blan- 
nerhassett said  that  they  had  better  go  together ;  if  he 
went  in  a  canoe,  he  would  be  an  easy  prey.  I  said  to 
them,  "  best  stick  together  ;"  and  so  they  determined  to 
stick  together.  They  went  off  in  great  haste. 

Why  did  they  go  in  a  body? — I  suppose  for  security. 

Mr.  Wick  ham. — You  saw  General  Tupper  and  Mr. 
Woodbridge  that  night? — Yes. 

Was  Mr.  Burr  there? — No  ;  I  did  not  see  him. 

Did  you  understand  whether  he  were  in  that  part  of 
the  country  at  that  time? — I  understood  not ;  never  saw 
him  on  the  island. 

WEDNESDAY,  August  iQth,  1807. 

GENERAL  JOHN  MORGAN  was  then  sworn,  and  gave  the 
following  testimony  :  Some  time  in  August  last,  about 
this  time  twelvemonth,  my  father  put  a  letter  into  my 
hands,  signed  Aaron  Burr,  in  which  he  said  that  himself 
and  Colonel  Dupiester  would  dine  with  him  the  following 
day.  My  father  requested  me  and  my  brother  to  go  and 
meet  Mr.  Burr  ;  which  we  did,  about  seven  miles  distant. 
After  a  few  words  of  general  conversation,  Mr.  Burr  ob- 
served to  me,  that  the  union  of  the  states  could  not  pos- 
i. — 16 


562  TRIAL     OF    AARON    BURR. 

sibly  last  ;  and  that  a  separation  of  the  states  muse 
ensue  as  a  natural  consequence,  in  four  or  five  years. 
Mr.  Burr  made  many  inquiries  of  me,  relative  to  the 
county  of  Washington  ;  particularly  the  state  of  its 
militia;  its  strength,  arms,  accoutrements,  and  the  char- 
acter of  its  officers.  These  conversations  continued  some 
trnie,  besides  other  things  which  I  can  not  recollect,  be- 
cause I  did  not  expect  to  be  called  upon  in  this  way. 
After  traveling  some  miles  we  met  one  of  my  workmen, 
a  well-looking  young  man.  Mr.  Burr  said  he  wished  he 
had  ten  thousand  such  fellows.  At  my  father's  table, 
during  dinner,  Mr.  Burr  again  observed,  that  the  separa- 
tion of  the  union  must  take  place  inevitably,  in  less  than 
five  years.  Shall  I  give  the  answers  that  were  made? 

Mr.  Wirt. — Perhaps  it  may  serve  to  connect  your  nar- 
rative better. 

I  recollect  that  it  was  my  father  who  answered  him, 
"  God  forbid  !"  Mr.  Burr  in  the  course  of  conversation  at 
the  dinner-table,  observed  that  with  two  hundred  men  he 
could  drive  the  president  and  congress  into  the  Potomac; 
and  with  four  or  five  hundred  he  could  take  possession  of 
the  city  of  New  York.  After  dinner,  he  walked  with  me  to 
my  brother's,  about  one  mile  distant  ;  and  in  the  course  of 
the  walk  spoke  of  military  men,  and  asked  me  if  either  of 
my  brothers  had  a  military  turn  ?  He  said  he  should  like 
to  see  my  brother  George  at  the  head  of  a  corps  of  grena- 
diers ;  he  was  a  fine,  stout-looking  fellow.  These  circum- 
stances induced  me  to  speak  to  my  father;  I  warned  him 
to  beware  of  Mr.  Burr,  and  told  him  that  in  the  course 
of  that  night  Mr.  Burr  would  attempt  to  have  an  inter- 
view with  him,  and  would  make  a  requsition  of  my  brother 
Tom  to  go  with  him  ;  and  that  I  suspected  something 
was  going  on,  but  what  I  did  not  know.  The  next  morn- 
ing I  rode  with  Mr.  Burr  to  the  town  of  Washington, 
'about  nine  or  ten  miles.  We  had  a  good  deal  of  conver- 
sation, principally  on  military  affairs  ;  on  the  state  of  the 
militia;  the  necessity  of  attending  to  military  discipline. 
He  told  me  the  effect  it  had  in  New  York  ;  that  in  New 
York  the  militia  were  in  good  order,  which  was  brought 
about  by  the  influence  and  exertionsof  asingle  individual 
(Colonel  Swartwout).  Mr.  Burr  asked  me,  if  I  thought 
I  could  raise  a  regiment  in  Washington  county ;  or 


TESTIMONY    OF    GENERAL    MORGAN,    563 

whether  I  could  raise  one  with  more  facility  in  »Ne\v 
Jersey. 

Mr.  Wirt. — You  have  lived  in  New  Jersey? — Yes. 

At  Washington  we  took  a  walk,  Mr.  Burr,  Colonel 
Dupiesterand  myself,  down  the  town  ;  and  I  pointed  out 
to  him  the  house  where  Mr.  Bradford  lived,  who  had  been 
at  the  head  of  the  western  insurrection.  He  inquired 
about  Mr.  Bradford.  (He  was  at  Baton  Rouge.)  I  told 
him  his  son  was  in  town,  and  Mr.  Burr  expressed  a  wish 
to  see  him.  Mr.  Burr  mentioned  to  me  that  he  met  with 
several  who  had  been  concerned  in  the  western  insurrec- 
tion ;  and  particularly  a  major  in  the  North-Western  Ter- 
ritory (whose  name  I  do  not  recollect)  who  had  told  him, 
that  if  he  were  ever  engaged  in  another  business  of  the 
kind,  he  pledged  himself  it  should  not  end  without  blood- 
shed. He  said  that  he  was  a  fine  fellow.  It  was  on  these 
circumstances  that  I  advised  my  father  to  apprise  the 
president  of  the  United  States,  that  something  was  going 
on. 

Mr.  Hay. — Which  way  did  he  go  ? — I  saw  him  leave 
Washington  for  Wheeling. 

Mr.  Wirt. — Were  the  separation  of  the  union  and  mili- 
tary affairs  the  predominant  subject  of  his  conversations? 
— Our  conversation  was  very  general  and  mixed,  never 
very  long ;  but  these  seemed  to  be  the  leading  subjects. 

Mr.  Hay. — Do  you  recollect  anything  he  said  about 
Bradford's  qualifications  for  conducting  such  an  enter- 
prise ? — I  recollect  it  well.  He  said  that  Bradford  was 
very  incompetent  to  such  an  undertaking  ;  and  that  in 
such  a  case  there  ought  to  be  the  utmost  confidence  in 
the  leader. 

Mr.  Wirt. — At  what  time  in  the  month  of  August 
was  this  visit  ?  Somewhere  between  the  2Oth  and  25th. 

Mr.  Hay. — Perhaps  the  date  of  this  letter  (from  the 
prisoner  to  your  father)  may  show.  This  letter  is  dated 
on  the  2 1st. 

Mr.  Parker  (one  of  the  jury.) — Did  he  approve'or  con- 
demn that  sentiment  of  the  major's  which  you  have 
quoted  ? — I  do  not  recollect. 

Did  he  make  any  further  remarks  respecting  him  ? — 
He  only  said  that  he  was  a  fine  fellow,  or  words  to  that 
effect  ;  that  he  was  very  fit  for  business  of  that  kind. 


564  TRIAL     OF    AARON    BURR. 

Mr.  Burr. — You  spoke  of  a  letter  from  me  to  your 
father.  Do  you  know  whether  he  wrote  me  some 
time  before,  a  letter  of  invitation  to  his  house  ? — Yes ; 
he  had  written  about  a  year  before  to  you  at  Pittsburg. 
That  letter  is  yet  unsealed,  in  my  brother  Tom's  bureau. 

Do  you  remember  that  it  was  communicated  to  me, 
and  that  that  was  the  cause  of  my  coming  to  visit  him? 
— Not  by  myself  or  my  brother  in  my  hearing. 

Do  you  remember  the  manner  in  which  I  introduced 
the  subject  you  allude  to.  Was  it  in  the  course  of  a 
lively  conversation  ?  Was  there  anything  very  serious 
in  it? — You  only  mentioned  it  in  a  lively  or  careless 
manner. 

Did  your  father  communicate  to  you,  next  morning, 
our  night's  conversation  ? — Yes. 

Before  we  rode  ? — No. 

Do  you  recollect  of  my  having  made  several  inquiries 
also  about  the  seminaries  of  learning;  and  of  one  that 
was  projected  in  your  neighborhood,  and  of  my  suggest- 
ing the  necessity  of  encouraging  it  ? — You  spoke  much, 
too,  on  that  subject. 

Did  I  seem  to  know  anything  of  Bradford,  before  you 
told  me? — You  seemed  to  know  a  good  deal  about  the 
insurrection. 

Did  you  not  tell  me  that  Bradford  was  a  noisy  fellow  ? 
— I  did  not.  I  have  no  objections  to  give  my  opinion 
of  Mr.  Bradford.  I  mentioned  him  to  you  as  a  mere 
lawyer. 

Did  I  seem  to  know  that  Bradford  lived  at  Washing- 
ton, before  you  mentioned  it  and  pointed  out  his  house? 
—You  did  not  seem  to  know  it. 

Who  were  at  dinner  at  your  father's  ? — My  father, 
mother,  wife,  sister,  Colonel  Dupiester,  Mr.  T.  Ewell,  and 
my  brother  Tom. 

COLONEL  MORGAN  was  then  sworn  and  was  proceed- 
ing, when 

Mr.  Burr  remonstrated  against  this  kind  of  evidence, 
consisting  of  conversations  and  previous  declarations. 
He  did  not  mean  to  interrupt  the  inquiry,  but  to  prevent 
the  time  of  the  court  from  being  wasted.  Some  desul- 
tory conversation  ensued  upon  this  point,  when 


TESTIMONY    OF    COLONEL    MORGAN.     565 

The  Chief  Justice  said  that  he  understood  the  same 
objections  would  hereafter  apply  as  well  to  the  consid- 
eration as  to  the  introduction  of  testimony  ;  that  these 
objections  might  be  hereafter  urged  ;  and  that  it  was  im- 
possible for  the  court  to  know  the  nature  of  the  evidence 
before  it  was  introduced. 

Mr.  Hay. — If  the  gentlemen  will  only  have  a  little 
patience,  they  will  find  that  other  circumstances  will  come 
out  to  prove  the  materiality  of  this  testimony,  and  will 
also  prove  the  most  perfect  connection  between  the.  dif- 
ferent parts  of  the  conspiracy.  This  witness  will  prove 
what  was  the  state  of  the  prisoner's  mind  in  August 
last. 

Mr.  Lee. — I  hope,  then,  the  jury  will  distinctly  under- 
stand, that  they  are  not  to  infer  from  the  court's  declin- 
ing to  interfere  on  the  present  occasion,  that  everything 
which  drops  from  the  witness  is  to  pass  without  objec- 
tion, which  may  be  made  at  any  time. 

Colonel  Morgan  (the  father  of  the  witness). — There  has 
been  a  long  acquaintance  between  Mr.  Burr  and  myself. 
He  had  introduced  to  my  notice  two  of  his  nephews, 

by  the  name  of ,  and  a  third,  by  .the  name  of 

Edwards,  Pierrepont  Edwards's  son.  I  had  received 
many  civilities  from  him,  and  had  received  many 
civil  letters  from  Mr.  Burr,  from  New  York,  in  conse- 
quence of  my  civilities  to  those  gentlemen.  After  these 
things  had  passed,  I  had  formed  such  a*i  attachment  to 
him,  that  I  never  should  have  forgotten  it,  had  not  this 
late  business  taken  place.  About  three  years  ago,  Mr. 
Burr  was  under  considerable,  and,  as  I  thought,  unjust 
persecution.  I  had  then  a  youngerson  (who  is  now  here) 
studying  law  at  Pittsburg.  I  wished  to  make  him  known 
to  Mr.  Burr,  and  in  consequence  of  my  friendship  for  him, 
and  of  the  great  rage  of  persecution  against  him,  I  invited 
him  in  that  letter  to  come  to  see  me  at  Morganza.  In 
all  probability,  I  should  have  done  the  same  thing,  from 
the  attachment  which  I  had  conceived  for  him.  Mr. 
Burr,  however,  had  left  Pittsburg  before  my  letter 
reached  it,  and  it  remains  now  in  my  son's  bureau  at 
Pittsburg.  On  the  24th  of  last  August,  I  received  a 
letter  from  Mr.  Burr,  dated  at  Pittsburg,  informing  me 
'.hat  he  should  dine  with  me  next  day. 


566  TRIAL     OF    AARON    BURR. 

Here  Mr.  Hay  handed  the  letter  to  Colonel  Morgan, 
who  said  that  the  letter  was  dated  on  the  2ist,  and  that 
he  had  not  for  some  time  seen  it,  as  he  had  enclosed  it 
to  the  President  of  the  United  States,  as  introductory  to 
his  communication  to  him. 

This  letter  was  handed  to  me  by  a  man  who  called 
himself  Count  Willie,  one  of  his  attendants.  I  believe 
my  son  did  not  call  on  me  that  evening  ;  but  next  morn- 
ing I  informed  him,  that  from  my  great  affection  for  Mr. 
Burr,  if  I  was  able,  I  should  certainly  go  and  meet  him  ; 
and  I  requested  my  son  and  his  brother  to  do  it,  with 
a  letter  of  introduction,  explanatory  of  their  names  and 
their  intention.  What  conversation  took  place  between 
him  and  my  son  I  know  not.  Mr.  Burr  mentioned  to  me 
in  conversation,  Colonel  Dupiester,  as  one  of  the  first 
military  characters  of  the  age.  I  shall  pass  over  the 
conversation  and  incidents  during  dinner.  After  dinner 
I  spoke  of  our  fine  country.  I  observed  that  when  1 
first  went  there,  there  was  not  a  single  family  between 
the  Alleghany  mountains  and  the  Ohio  ;  and  that  by  and 
by  we  should 'have  congress  sitting  in  this  neighborhood, 
or  at  Pittsburg.  We  were  allowed  to  sport  these  things 
over  a  glass  of  wine.  "  No,  never,"  said  Mr.  Burr,  "  for 
in  less  than  five  years  you  will  be  totally  divided  from 
the  Atlantic  states."  Mr.  Burr  entered  into  some  argu- 
ments to  prove  why  it  should  and  must  be  so.  The  first 
reason  was,  the  produce  of  the  sale  of  the  western  lands 
being  carried  to  the  Atlantic  states,  and  that  the  people 
to  the  west  should  not  be  tributary  to  them.  He  said 
that  our  taxes  were  very  heavy  ;  and  demanded  why 
we  should  pay  them  to  the  Atlantic  parts  of  the  country  ? 
By  this  time  I  took  an  opportunity  to  observe,  "  God  for- 
bid ! "  I  hoped  that  no  such  thing  would  ever  happen,  at 
least  in  my  time.  This  observation  terminated  the  con- 
versation as  to  that  particular  point.  It  then  turned 
upon  the  weakness  and  imbecility  of  the  federal  govern- 
ment. 

Mr.  Wirt. — Who  started  that  subject  ?— Mr.  Burr 
started  it.  I  don't  recollect  saying  anything  on  the  sub- 
ject; but  began  to  think  that  all  was  not  right.  He  said 
that  with  two  hundred  men,  he  could  drive  congress, 
with  the  president  at  its  head,  into  the  river  Potomac  ; 


TESTIMONY    OF    COLONEL    MORGAN.     567 

or  that  it  might  be  done  ;  and  he  said  with  five  hundred 
men,  he  could  take  possession  of  New  York.  He 
appealed  to  Colonel  Dupiester  if  it  could  not  be  done  ; 
he  nodded  assent.  There  was  a  reply  made  to  this  by 
one  of  my  sons,  that  he  would  be  damned  if  they  could 
take  our  little  town  of  Cannonsburg  with  that  force. 
Some  short  time  after  this,  Mr.  Burr  went  out  from  the 
dining-room  to  the  passage,  and  beckoned  to  my  son 
Thomas.  What  their  conversation  was,  I  can  not  say. 
Soon  after  a  walk  was  proposed  to  my  son's  mill,  and  the 
company  went.  When  they  returned  one  (or  both)  of 
my  sons  came  to  caution  me,  and  said,  "  You  may 
depend  upon  it,  Mr.  Burr  will  this  night  open  himself  to 
you.  He  wants  Tom  to  go  with  him."  After  the  usual 
conversation,  Mr.  Burr  went  upstairs,  and  as  I  thought 
to  go  -to  bed.  Mrs.  Morgan  was  reading  to  me  (as  is 
.usual,  when  the  family  have  retired),  when  about  eleven 
o'clock,  and  after  I  had  supposed  he  had  been  an  hour 
in  bed,  she  told  me  that  Mr.  Burr  was  coming  down,  and 
as  she  had  heard  my  son's  conversation,  she  added, 
"You'll  have  it  now."  Mr.  Burr  came  down  with  a  can- 
dle in  his  hand.  Mrs.  Morgan  immediately  retired.  Mr. 
Burr  took  his  seat  by  me.  He  drew  from  his  pocket  a 
book.  I  suppose  it  was  a  memorandum  book.  After 
looking  at  it,  he  asked  me  if  I  knew  a  Mr.  Vigo,  of  Fort 
Vincent,  a  Spaniard.  I  replied,  yes  ;  I  knew  him  ;  I  had 
reasons  to  know  him.  One  was  that  I  had  reasons  to 
believe  that  he  was  deeply  involved  in  the  British  con- 
spiracy in  1788,  as  I  supposed,  the  object  of  which  was 
to  separate  the  states  ;  and  which  General  Neville  and 
myself  had  suppressed.  I  called  it  a  nefarious  thing  to 
aim  at  the  division  of  the  states.  I  was  careful  to  put 
great  emphasis  on  the  word  "  nefarious."  Mr.  Burr  find- 
ing what  kind  of  man  he  had  to  deal  with,  suddenly 
stopped,  thrust  into  his  pocket  the  book  which  I  saw 
had  blank  leaves  in  it,  and  retired  to  bed.  I  believe  I 
was  pretty  well  understood.  The  next  morning  Mr. 
Burr  and  Colonel  Dupiester  went  off  before  breakfast, 
without  my  expecting  it,  in  company  with  my  son  ;  and 
from  that  time  to  this,  I  have  not  seen  him  but  in  this 
place.  I  well  remember  some  explanatory  circumstances 
My  son  agreed  with  me  that  I  should  apprise  the  presi 


563  TRIAL     OF    AARON    BURR. 

dent  of  our  impressions,  and  point  out  a  mode  by  which 
Mr.  Burr  might  be  followed  step  by  step. 

Mr.  Mac  Rae. — After  your  son's  observation  about  the 
town  ofCannonsburg  and  the  subsequent  conversation, 
did  the  prisoner  draw  any  comparison  between  the  peo- 
ple of  the  eastern  and  western  country  ? — He  said,  "Keep 
yourself  on  this  side  of  the  mountain,  and  you'll  never  be 
disturbed."  By  which  I  understood  that  there  was  an 
attempt  to  be  made  to  effect  a  disunion.  There  is  one 
more  circumstance  which  I  must  state  to  the  court.  The 
Sunday  after  the  judge  of  our  circuit  court  dined  with  me. 
I  requested  him  to  mention  the  circumstances  to  General 
Neville,  and  invited  him  to  come  the  following  Sunday  to 
dinner,  with  Judges  Tilghman  and  Roberts,  for  I  had 
business  of  the  first  importance  to  communicate.  The 
court  being  longer  engaged  than  was  expected,  t&ey  did 
not  dine  with  me  on  that  day  ;  but  they  did  on  the  follow- 
ing Sunday.  These  gentlemen  wrote  a  joint  letter  to 
the  president,  informing  him  of  my  communications  to 
them. 

Mr.  Burr. — What  sort  of  a  book  was  the  one  I  had  in 
my  hand  ? — It  was  a  small  book  like  this.  [A  pocket- 
book.] 

Was  it  bound  ? — It  was  not  so  large  as  this  ;  I  do  not 
recollect  whether  it  was  bound,  as  it  would  not  be  very 
polite  in  me  to  take  particular  notice  of  such  things  when 
gentlemen  are  at  my  own  house. 

When  you  spoke  of  a  nefarious  plan,  to  what  transac- 
tion did  you  allude  ? — To  Vigo's  plan,  which  I  conceived 
was  intended  to  dissever  the  union. 

Who  were  present  when  Judge  Tilghman  saw  you  ? — 
General  Neville  and  Judge  Roberts  and  my  son. 

Was  there  any  other  from  Pittsburg  ? — None. 

Your  conversation  at  dinner,  then,  was  jocular  about 
the  moving  of  congress  to  Pittsburg  ?  Was  not  part  of 
the  conversation  jocular? — My  manner  might  have  been 
jocular,  but  not  my  meaning. 

Did  you  not  once  live  on  the  Mississippi,  or  go  to  that 
country  with  a  design  to  settle  there  r — I  did,  with  the 
approbation  of  my  country,  in  order  to  take  up  and  dis- 
tribute lands  to  all  my  countrymen  to  the  west  of  the 
Mississippi. 


TESTIMONY    OF    THOMAS   MORGAN.      569 

Did  you  acquire  any  lands  there  ? — I  am  told  I  have 
a  right  to  some  lands  there. 

Where  was  it  that  you  lived  on  the  Mississippi  ? — At 
New  Madrid. 

On  which  side  of  the  Mississippi? — The  west. 

In  the  Spanish  territories? — With  the  approbation  of 
the  Spanish  government. 

How  long  did  you  live  there  ? — About  forty  days.  I 
went  from 'that  place  to  New  Orleans,  where  I  detected  a 
British  spy. 

In  what  year? — In  1788. 

GENERAL  MORGAN  was  then  called  in  at  the  request  of 
the  prisoner. 

Mr.  Burr. — In  what  state  of  mind  was  your  father 
when  General  Neville  and  Judge  Tilghman  were  there? 
— He  had  lately  had  a  fall  which  had  done  him  consider- 
able injury. 

I  mean  as  to  his  capacity.  Did  you  not  make  some 
apology  to  Judge  Tilghman  for  the  state  of  his  mind  ? — 
I  did  tell  Judge  Tilghman  that  my  father  was  old  and 
infirm  ;  and  like  other  old  men,  told  long  stories,  and  was 
apt  to  forget  his  repetitions. 

Mr.  Mac  Rae. — What  did  the  prisoner  say  ? — When 
Mr.  Burr  said  that  with  two  hundred  men  he  could  drive 
the  president  and  congress  into  the  Potomac,  I  must  con- 
fess that  I  felt  myself  hurt  and  replied  with  some  warmth, 
"  I'll  be  damned,  sir,  if  you  could  take  the  little  town  of 
Cannonsburg  with  that  force."  Mr.  Burr  replied,  "  Con- 
fine yourself  to  this  side  of  the  mountain,  and  it  is  an- 
other thing." 

Do  you  recollect  whether  anything  were  said  concern- 
ing the  people  on  the  eastern  and  western  sides  of  the 
Alleghany? — He  answered,  "Confine  yourselves  on  this 
side  of  the  mountain,  and  it  is  another  thing." 

Mr.  Baker  objected  to  this  examination  by  Mr.  Mac 
Rae  as  improper. 

Mr.  Burr. — Do  you  recollect  that  the  probability  of  a 
Spanish  war  was  mentioned  ? — It  was  a  general  subject 
of  conversation  between  Mr.  Burr  and  myself. 

THOMAS  MORGAN  was  next  sworn  ;  his  evidence  was  as 


570  TRIAL   OF  AARON  BURR. 

follows  :  On  the  evening  of  the  2ist  of  August,  my  father 
received  a  letter  from  Pittsburg  by  the  hands  of  some 
person,  the  signature  of  which  was  Aaron  Burr.  In  that 
letter  the  writer  Communicated  his  intention  of  dining 
with  my  father  on  the  following  day  ;  he  also  mentioned 
that  he  should  take  the  liberty  of  introducing  a  friend. 
My  father  requested  my  brother  and  myself  to  meet  him, 
which  we  accordingly  did.  Nothing  of  importance  oc- 
curred during  our  ride,  in  my  presence.  Mr.  Burr  rode 
generally  with  my  brother,  Colonel  Dupiester  was  often 
with  myself,  and  sometimes  we  were  promiscuously  to- 
gether. Whilst  we  were  at  and  after  dinner,  Mr.  Burr 
emphatically,  as  I  thought,  confidently,  and  with  great 
earnestness,  said  that  we  (meaning  the  people  of  the 
west)  would  be  separated  in  five  years  from  the  Atlantic 
states ;  the  Alleghany  mountains  to  be  the  line  of  divi- 
sion. He  said  that  great  numbers  were  not  necessary  to 
execute  great  military  deeds  ;  all  that  was  wanting  was 
a  leader,  in  whom  they  could  place  confidence,  and  who 
they  believed  could  carry  them  through.  This  conver- 
sation occurred  during  dinner.  He  said  that  with  five 
hundred  men  New  York  could  be  taken  ;  and  that  with 
two  hundred,  congress  could  be  driven  into  the  Potomac 
river.  To  the  last  observation,  my  brother,  I  think,  in- 
dignantly replied  :  "  By  God  !  sir,  with  that  force  you 
can  not  take  our  little  town  of  Cannonsburg."  Mr.  Burr's 
reply  to  this  observation  was,  "  Confine  yourself  to  this 
side  of  the  mountain,  and  I'll  not  contradict  you;"  or 
words  to  that  effect.  Mr.  Burr  withdrew  from  the  room 
where  we  dined,  and  on  reaching  the  door  leading  into 
the  entry  invited  me,  by  a  nod,  to  go  with  him.  When 
we  had  arrived  at  the  back  door  of  the  entry,  out  of  hear- 
ing of  any  other  person,  Mr.  Burr  inquired  what  my  pur- 
suits were.  I  informed  him  that  I  was  studying  the  law. 
He  then  said  he  was  sure  I  could  not  find  employment 
for  either  body  or  mind;  but  he  did  not  further  explain 
himself.  He  said  that  there  were,  or  asked  if  there  were 
not,  a  number  of  young  men  in  Pittsburg  similarly  situa- 
ted. '  He  said  that  under  our  government  there  was  no 
encouragement  for  talents;  that  John  Randolph  had  de- 
clared on  the  floor  of  congress,  that  men  of  talents  were 
dangerous  to  the  government.  He  asked  me  how  or 


TESTIMONY    OF  •  JACOB    ALLBRIGHT.     57! 

whether  I  would  like  a  military  expedition  or  enterprise  ? 
(I  can  not  recollect  which,  but  it  was  some  such  expres- 
sion.) My  answer  was,  "  It  would  entirely  depend  upon 
the  object  or  cause  for  which  I  was  to  fight."  I  think 
previously,  or  certainly  soon  after,  he  said,  "  I  wish  you 
were  on  your  way  with  me."  After  asking  Mr.  Burr 
concerning  a  young  man  (Mr.  Duer)  living  at  New  Or- 
leans, with  whom  I  had  a  slight  acquaintance,  he  said  he 
was  doing  well ;  and  he  then  spoke  of  Duer's  brother,  of 
whom  I  knew  nothing,  who  was  also  doing  well,  as  a  law- 
yer, but  he  had  much  rather  be  at  the  head  of  a  military 
corps.  Mr.  Morgan  then  proposed  to  state  the  steps 
which  his  father  had  taken  to  defeat  Mr.  Burr's  projects, 
when  he  was  stopped  by  the  court. 

Mr.  Burr. — Had  you  ever  spoken  to  me  before  ? — 
Never. 

Did  you  not  mention,  with  some  complaints,  the  neg- 
lect which  your  education  had  received? — No. 

Did  you  not  complain  about  wasting  your  time? — I 
'recollect  nothing  on  that  subject,  but  your  remark,  that 
I  could  not  surely  find  employment  for  either  body  or 
mind. 

Mr.  Wirt. —  Do  you  recollect  your  answer  to  Mr.  Burr's 
observation,  that  he  would  like  to  see  you  on  your  way 
with  him  ? — I  do  not  recollect  except  what  I  have  stated 
already.  Here  our  conversation  ended. 

Mr.  Hay. — Do  you  recollect  when  you  said  that  your 
liking  a  military  life  would  depend  on  the  object  or  cause 
in  which  you  were  engaged,  whether  anything  more  was 
said  by  Mr.  Burr? — No. 

JACOB  ALLBRIGHT  was  then  called  and  sworn. 

Mr.  Hay. — Our  object  is  to  prove  by  his  testimony 
the  actual  assemblage  of  men  on  Blannerhassett's  island, 
and  it  goes  of  course  to  prove  the  overt  act. 

Jacob  Allbright. — The  first  I  knew  of  this  business  was, 
I  was  hired  on  the  island  to  help  to  build  a  kiln  for  dry- 
ing corn ;  and  after  working  some  time,  Mrs.  Blanner- 
hassett  told  me  that  Mr.  Blannerhassett  and  Mr.  Burr 
were  going  to  lay  in  provisions  for  an  army  for  a  year. 
I  went  to  the  mill,  where  I  carried  the  corn  to  be  ground 
after  it  had  been  dried.  I  worked  four  weeks  on  that 


572  TRIAL    OF    AARON    BURR. 

business  in  the  island.  Last  fall  (or  in  September)  after 
Blannerhassett  had  come  home  (he  had  been  promising 
me  cash  for  some  time),  I  stepped  up  to  him.  He  had 
no  money  at  the  time,  but  would  pay  me  next  day  or 
soon.  Says  he,  "  Mr.  Allbright  you  are  a  Dutchman." 
But  he  asked  me  first  and  foremost,  whether  I  would  not 
join  with  him  and  go  down  the  river?  I  told  him  I  did 
not  know  what  they  were  upon ;  and  he  said  "  Mr. 
Allbright,  we  are  going  to  settle  a  new  country."  And  I 
gave  him  an  answer  that  I  would  not  like  to  leave  my 
family.  He  said  he  did  not  want  any  families  to  go 
along  with  him.  Then  he  said  to  me,  "  You  are  Dutch- 
man, and  a  common  man  ;  and  as  the  Dutch  are  apt  to 
be  scared  by  high  men,  if  you'll  go  to  New  Lancaster, 
where  the  Dutch  live,  and  get  me  twenty  or  thirty  to  go 
with- us,  I  will  give  you  as  many  dollars."  New  Lancas- 
ter was  some  distance  off.  I  went  home  then,  and  gave 
him  no  answer  upon  that.  In  a  few  days  after,  the  boats 
came  and  landed  at  the  island.  The  snow  was  about  two 
or  three  inches  deep,  and  I  went  out  a-hunting.  I  was 
on  the  Ohio  side  ;  I  met  two  men  ;  I  knew  they  belonged 
to  the  boats,  but  I  wanted  to  find  out ;  and  they  asked 
me  whether  I  had  not  given  my  consent  to  go  along  with 
Blannerhassett  down  the  river?  As  we  got  into  a  con- 
versation together  they  named  themselves  Mr.  Burr's 
men,  belonging  to  the  boats,  landed  at  the  island.  When 
they  asked  me  whether  I  had  not  consented  to  go'down 
with  Blannerhassett,  I  put  a  question  to  them.  I  told 
them  I  did  not  know  what  they  were  about ;  and  one  of 
the  gentlemen  told  me,  they  were  going  to  take  a  silver 
mine  from  the  Spanish.  I  asked  the  gentlemen  whether 
they  would  not  allow  that  this  would  raise  war  with 
America  ?  They  replied,  no.  These  were  only  a  few 
men  ;  and  if  they  went  with  a  good  army,  they  would 
give  up  the  country  and  nothing  more  said  about  it.  I 
had  all  this  conversation  with  the  two  men.  These  men 
showed  me  what  fine  rifles  they  had,  going  down  the 
river  with  them.  Then  I  went  to  the  island  and  Blan- 
nerhassett paid  me  off  in  Kentucky  notes.  People,  how- 
ever, didn't  like  these  notes  very  well,  and  I  went  over  to 
the  bank  at  Kanawa  to  change  them.  I  got  two  of  the 
notes  changed  ;  and  one,  a  ten-dollar  note,  was  returned 


TESTIMONY    OF    JACOB    ALLBRIGHT.     573 

to  my  hand  for  which  I  wished  to  get  silver  from  Blan- 
nerhassett.  I  went  to  the  island  the  day  the  proclama- 
tion came  out.  But  before  I  went  to  Blannerhassett's 
house,  I  heard  he  was  not  at  home,  but  at  Marietta.  I 
went  on  the  Virginia  side,  where  I  met  three  other  men 
belonging  to  the  boats,  with  three  complete  rifles.  They 
made  a  call  upon  me  to  take  them  to  the  island  in  my 
canoe,  and  I  accepted  [excepted  or  refused]  to  it ;  but 
afterwards  I  carried  the  third  man,  who  stood  close  by  my 
canoe,  over  to  the  island.  After  being  some  time  on  the 
island,  I  went  down  to  the  four  boats.  Blannerhassett 
was  not  at  home  yet ;  and  I  met  some  of  the  boat  people 
shooting  at  a  mark.  They  had  a  fire  between  the  bank 
and  boats.  I  saw  this  in  the  day  time. 

Mr.  Hay. — How  many  boats  were  there  ? — Four. 

I  waited  at  the  house  till  Blannerhassett  came  home. 
He  appeared  very  much  scared.  One  of  the  boatmen 
came  up  to  him  for  something,  and  he  told  him,  "  Don't 
trouble  me  ;  I  have  trouble  enough  already."  He  went 
up  to  his  chamber,  and  I  saw  no  more  of  him.  I  asked 
an  old  gentleman  who  was  there,  and  with  whom  I  was 
well  acquainted,  to  go  up  to  his  chamber  and  change  my 
note  for  silver.  He  did  go,  and  brought  me  silver.  By 
and  by  I  heard  that  they  were  going  to  start  that  night. 
Thinks  I,  "  I'll  see  the  end  of  it."  This  was  the  night 
of  the  very  day  that  Blannerhassett  got  back  from 
Marietta.  He  got  back  before  night.  When  night  came 
on,  I  was  among  the  men,  and  also  in  the  kitchen;  and 
saw  the  boatmen  running  bullets.  One  of  them  spoke 
out  to  the  others,"  Boys,  let's  mould  as  many  bullets  as  we 
can  fire  twelve  rounds."  After  that,*I  saw  no  more  till 
after  twelve  o'clock  at  night.  Then  Blannerhassett  came 
down  from  the  chamber,  and  called  up  some  of  his  ser- 
vants ;  he  had  four  or  five  trunks.  There  were  not 
Crusty  hands  enough  to  carry  them  to  the  boats ;  and 
some  person  called  out  my  name,  and  asked  me  to  help 
them  ;  and  I  carried  one  of  the  trunks  and  moved  along 
with  them.  When  we  got  down,  some  person,  I  don't 
particularly  know  who,  but  think  it  was  Blannerhassett 
himself,  asked  me  to  stand  by  the  trunks  till  they  were 
put  in  the  boats.  When  the  last  of  them  went  off,  I  saw 
men  standing  in  a  circle  on  the  shore.  I  went  up  to 


574  TRIAL     OF    AARON    BURR. 

them  ;  perhaps  they  were  five  or  six  rods  fVom  me.  The 
first  thing  that  I  noticed,  was  their  laying  plans  and  con- 
sulting how  Blannerhassett  and  Comfort  Tyler  should  get 
safe  by  Galliopolis.  One  Nahum  Bennett  [perhaps  Bent] 
was  called  forward,  and  when  he  came,  Blannerhassett 
asked  him  whether  he  had  not  two  smart  horses? 
Nahum  Bennett  answered  no  ;  he  had  but  one.  Then 
Blannerhassett  told  him  to  go  to  Captain  Dennie,  and 
get  his  sorrel  horse  ;  and  Nahum  Bennett  told  him  that 
the  sorrel  horse  had  no  shoes  on  ;  and  Blannerhassett 
said  the  roads  were  soft,  and  would  not  hurt  the  horse. 
Blannerhassett  told  Nahum  Bennett  to  meet  him  and 
Comfort  Tyler  with  the  horses  somewhere  about  Gal- 
liopolis ;  Bennett  inquired  how  he  was  to  find  him  out; 
should  he  inquire  for  him  ?  "  No."  "  Have  you  no 
friends  there?"  "  No."  Mrs.  Blannerhassett  then 
came  forward,  and  she  told  Blannerhassett  and  Comfort 
Tyler,  that  they  must  take  a  canoe  and  get  into  it  before 
they  got  to  Galliopolis,  and  sail  down 'the  stream  of  the 
Ohio  ;  for  nobody  would  mind  a  couple  of  men  going 
down  the  stream.  She  said  "  she'd"  pay  for  the  canoe. 
Blannerhassett  told  Nahum  Bennett  to  take  the  two 
horses  and  pass  round  Galliopolis  before  day,  and  then 
they  might  surround  [go  round]  Galliopolis.  After  that 
a  man  by  the  name  of  Tupper  laid  his  hands  upon  Blan- 
nerhassett, and  said,  "Your  body  is  in  my  hands,  in  the 
name  of  the  commonwealth."  Some  such  words  as  that 
he  mentioned.  When  Tupper  made  that  motion,  there 
were  seven  or  eight  muskets  levelled  at  him.  Tupper 
looked  about  him.  and  said,  "  Gentlemen,  I  hope  you 
will  not  do  the  like."  One  of  the  gentlemen  who 
was  nearest,  about  two  yards  off,  said,  "  I'd  as 
lieve  as  not."  Tupper  then  changed  his  speech, 
and  said  he  wished  him  to  escape  safe  down  the 
river,  and  wished  him  luck.  Tupper  before  told 
Blannerhassett  he  should  stay  and  stand  his  trial.  But 
Blannerhassett  said  no  ;  that  the  people  in  the  neigh- 
borhood were  coming  down  next  day  to  take  him,  and 
he  would  go.  Next  day  after  I  saw  the  Wood  county 
militia  going  down.  The  people  went  off  in  boats  that 
night  about  one. 

All? — All  but  one,  who  was  a  doctor.     All  belonging 


TESTIMONY  OF  JACOB  ALLBRIGHT.     575 

to  the  boats  had  some  kind  of  arms.  Some  of  the  boats 
were  on  the  shore  and  some  not. 

Mr.  Hay. — How  many  men  were  there  in  all  ? — About 
twenty  or  thirty  ;  I  did  not,  however,  count  them.  Every 
man  belonging  to  the  boats  that  I  took  notice  of  had 
arms. 

Mr.  Coleman  (one  of  the  jury). — What  day,  month,  or 
year  was  this  ? — In  the  fall  of  the  year.  I  don't  ^recol- 
lect  the  month  or  particular  time,  but  there  was  snow  on 
the  ground. 

Mr.  Hay. — Do  you  recollect  whether  it  snows  in  Sep- 
tember ?— I  do  not  know. 

Mr.  Sheppard  (one  of  the  jury). — Was  Tupper  a  mag- 
istrate or  officer  ? — I  know  not. 

Where  had  Blannerhassett  been  ? — In  Kentucky. 

Mr.  Wirt. — Had  you  seen  Mr.  Burr  on  the  island  ? — 
Yes. 

Was  he  there  before  Blannerhassett  went  to  Kentucky  ? 
— He  was. 

Did  you  speak  of  the  boats  under  the  command  of 
Tyler?— I  did. 

Did  the  boats  quit  the  island  at  the  time  of  hearing 
about  the  proclamation  ? — Yes. 

Did  the  Wood  county  militia  go  there  next  day  ? — Yes. 

Mr.  Parker  (one  of  the  jury). — Did  you  hear  Peter 
Taylor  give  advice  ? — I  did  not. 

Mr.  Parker. — Did  you  see  Peter  Taylor  converse  with 
Blannerhassett  that  night? — I  do  not  recollect;  I  was 
busy  about  the  boats. 

How  long  did  Aaron  Burr  remain  on  the  island  ? — I  do 
not  recollect. 

How  long  had  he  been  there  before  the  departure  of 
the  boats  ? — To  this  question  he  first  answered  that  he 
did  not  know;  and  that  Mr.  Burr  never  returned  back  to 
the  island  ;  but  after  some  reflection  he  said  that  he  had 
been  there  about  six  weeks  before  the  departure  of  the 
boats. 

Mr.  Sheppard  (one.  of  the  jury). — How  long  was  Blan- 
nerhassett absent? — I  don't  know.  I  did  not  live  on  the 
island. 

Mr.  Burr. — Was  that  Mr.  Tupper  called  General  Tup- 
per ? — He  was. 


576  TRIAL    OF  AARON  BURR. 

Did  you  know  General  Tupper? — Yes. 

Is  that  the  gentleman  ?  [pointing  to  General  Tupper, 
who  was  present  in  court]. — Yes. 

When  the  muskets  were  levelled  at  him  did  they  seem 
to  have  a  mind  to  hurt  him  ? — Yes.  A  gentleman  near 
me  said,  "  I'd  as  lieve  shoot  as  not." 

You  said  differently  on  a  former  occasion.  Don't  you 
recollect  making  a  statement  in  which  nothing  was  said 
about  levelling  guns  at  him  ?  and  that  it  looked  like  ex- 
ercising?— I  do  not. 

A  desultory  conversation  here  ensued  between  the  op- 
posite counsel. 

Mr.  Burr  professed  that  it  was  his  intention  to  degrade 
the  witness  by  invalidating  his  credibility. 

Mr.  Hay  said  that  it  was  very  probable,  if  this  man  had 
at  different  times  stated  what  seemed  to  be  contradictory, 
he  did  it  through  ignorance  ;  and  Mr.  Burr  insisted  that 
an  error  through  ignorance  might  be  as  injurious  to  him 
as  an  error  through  immorality;  he  cared  not  which  ;  that 
the  consequences  to  him  were  in  both  cases  the  same. 

Mr.  Burr. — Have  you  not  been  examined  before  ? — 
Yes. 

By  whom  ? — By  'Mr.  Jackson. 

Had  he  not  printed  questions  in  his  hand  ? — He  had  a 
paper  in  his  hand. 

Did  he  set  down  your  answers  ? — Yes. 

How  long  after  the  guns  were  pointed  at  General  Tup- 
per, before  the  men  went  to  their  boats  ? — I  do  not  recol- 
lect. Anything  that  I  am  not  certain  of  I  can  not  speak  to. 

Was  Mrs.  Blannerhassett  there  when  the  guns  were 
pointed  ? — Yes. 

Was  Tupper  inside  of  the  circle? — Yes. 

Was  she  too? — I  don't  recollect. 

Did  you  see  Mr.  Woodbridge  there? — I  don't  know 
him.  He  lived  in  the  state  of  Ohio. 

How  long  did  you  work  with  Blannerhassett? — Six 
weeks. 

At  what  time  was  it  that  you  saw  me  there  ? — I  do  not 
recollect. 

Mr.  Burr. — The  counsel  for  the  United  States  know, 
I  presume,  this  circumstance,  and  have  testimony  to  as- 
certain it. 


TESTIMONY  OF    JACOB    ALLBRIGHT.     577 

Mr.  Hay. — We  have  not,  as  far  as  I  am  informed. 

Mr.  Burr. — If  they  have  no  objection,  I  will  state  when 
I  was  on  the  island. 

Mr.  Hay  said  he  had  not. 

Mr.  Burr  then  said  that  it  was  on  the  last   day  of  Au-  ' 
gust    and    the  first   of  September   that  he  was  on    the 
island. 

Were  the  boats  in  the  stream  or  close  to  the  land, 
when  General  Tupper  wished  them  good  luck? — In 
shore. 

Mr.  Anthony  (one  of  the  jury). — Did  you  see  any  pow- 
der?— No. 

Mr.  Hay. — Were  you  in  the  boats? — I  was  not. 

Mr.  Burr. — Where  does  General  Tupper  live? — In 
Marietta. 

Does  he  not  belong  to  the  state  of  Ohio? — Yes. 
.  When  did  you  first  know  him  ? — Last  fall. 

Mr.  Parker. — Where  did  you  live  before  you  went  to 
work  on  the  island  ? — About  a  mile  from  the  island. 

Mr.  Burr  then  asked  the  clerk  for  the  statement  which 
he  had  taken  of  Allbright's  testimony,  when  it  was  sub- 
mitted to  the  court  on  a  former  occasion  on  the  motion 
for  binding  himself  in  a  higher  bail. 

The  clerk  handed  him  the  copy,  and  the  prisoner  pro- 
ceeded with  the  examination. 

Mr.  Burr. — You  said  before  that  the  men  who  raised 
their  muskets  against  General   Tupper  were  not  in  earn- 
est ? — That  was  a  piece  of  my  opinion.     I  did  not  know 
whether    they  were    in  earnest,  as  there  was    no  quarrel 
'among  them,  and  no  firing  afterwards. 

o  o 

Mr.  Carrington  (one  of  the  jury)  reminded  him  of  an 
expression  of  one  of  the  party  :  "I  had  as  lieve  as  not 
shoot,"  which  showed  that  they  were  in  earnest. 

Mr.  Burr. — I  beg  the  court  to  call  on  the  prosecution 
for  the  deposition  of  this  witness,  taken  before  John  G. 
Jackson. 

Mr.  Hay  said  that  he  would  not  let  gentlemen  have 
access  to  his  portfolio  when  they  pleased;  that  he  must 
be  satisfied  by  reasons  assigned  or  required  by  the  order 
of  the  court  before  he  produced  it. 

The  Chief  Justice  was  not  satisfied  that  the  court  had 
a  right  to  call  for  the  affidavit. 

I.— 37 


578  TRIAL     OF    AARON    BURR. 

Mr.  Wickham  said  it  was  obvious  that  there  were  cer- 
tain suspicions  attached  to  the  credibility  of  the  witness  ; 
and  that  it  was  their  desire  to  compare  his  present  testi- 
mony with  his  former  affidavit. 

Mr.  Hay  observed  that  Mr.  Jackson  might  not  have 
taken  down  the  testimony  of  the  witness  in  his  language, 
but  couched  it  in  his  own  ;  hence  there  might  be  an  ap- 
parent variation  between  the  present  evidence  and  the 
affidavit  •  but  that  there  was  no  real  variance  ;  that  the 
object  of  Mr.  Jackson's  taking  his  affidavit  was  merely  to 
ascertain  whether  he  were  possessed  of  any  useful  infor- 
mation, and  to  know  whether  he  ought  to  be  summoned 
as  a  witness  or  not ;  that  this  was  the  object  in  taking  all 
the  testimony  which  had  been  collected  ;  that  his  affidavit 
was  therefore  general;  but  that  the  man,  after  finding 
that  he  was  to  be  summoned  as  a  witness,  had  revolved 
the  subject  in  his  own  mind,  and  recollected  many  cir- 
cumstances which  had  not  before  occurred  to  him. 

Mr.  Burr. — We  have  a  right  to  coerce  this  paper.  If 
gentlemen  will  not  surrender  it,  I  may  at  all  events  avail 
myself  of  their  refusal.  My  object  is  to  prove  such  a 
diversity  between  the  statements  of  the  witness  at  differ- 
ent times,  as  may  destroy  all  faith  in  his  recollection. 

Mr.  Hay. — Then,  sir,  although  I  might  retain  this 
paper,  the  gentlemen  are  welcome  to  make  all  the  use  of 
it  they  can.  Take  it. 

Mr.  Burr  then  proceeded.  When  you  said  that  all  had 
guns,  did  you  mean  to  say  that  all  in  the  circle,  or  all  of 
them  together,  without  exception,  had  arms  ? — There  were 
seven  or  eight  who  had  guns,  and  there  were  other  arms  ; 
but  there  might  be  more  men  than  guns. 

How  many  were  in  the  circle? — I  did  not  count  them. 

What  kind  of  guns  had  they  ? — Rifles  and  short  guns. 

Did  you  see  any  guns  with  bayonets? — I  saw  none. 

Mr.  Mac  Rae. — W7hen  did  you  see  most  arms?  in  the 
day,  or  in  the  night? — I  saw  more  arms  in  the  day;  but 
it  was  in  the  night  that  I  saw  most  armed  men. 

Mr.  Parker  (one  of  the  jury). — Why  did  you  think  that 
all  of  them  had  arms? — Because  I  was  with  them  almost 
all  night.  In  the  day,  I  saw  some  of  them  shooting  at 
marks  ;  and  I  saw  other  arms  at  that  time  lying  upon  the 
beach. 


TESTIMONY    OF     WILLIAM    LOVE.       579 

Mr.  Wickham. — Did  you  see  them  all  with  arms  at 
once? — No. 

How  many  arms  did  you  see  in  the  whole,  or  at  any 
one  time  and  place  together? — I  can  not  tell. 

Did  you  know  the  men  who  had  arms  ? — I  did  not. 

Did  you  know  the  names  of  the  other  men  ? — No. 

Would  you  know  any  of  them  if  you  saw  them  ? — I 
would  not.  They  are  all  strangers  to  me. 

How  could  you  distinguish  the  arms  seen  in  the  day- 
time, from  those  seen  late  in  the  enening,  or  at  night  ? — 
I  can  not  answer. 

PETER  TAYLOR  was  then  called,  and 

Mr.  Hay  asked  him  whether  he  had  not  seen  Mr.  Burr 
on  the  island? — He  answered  that  he  had  not. 
•  Mr.  Burr. — If  gentlemen  have  now  done  with  the 
overt  act,  or  when  they  have  done,  I  will  thank  them  to 
inform  me  ;  for  then  we  shall  have  some  considerations 
to  offer  to  the  court. 

Mr.  Hay. — We  have  other  additional  testimony  to 
offer  on  this  very  point ;  the  assemblage  of  men  on  the 
island. 

MAURICE  P.  BELKNAP  was  then  called,  but  did  not 
answer. 

WILLIAM  LOVE  was  then  sworn. 

Mr.  Hay. — Were  you  on  Blannerhassett's  island  ? — 
Yes ;  but  I  was  not  there  at  the  time  when  Colonel 
Tyler's  boats  arrived  there.  I  was  then  at  Marietta  ; 
and  it  was  on  Sunday  that  I  went  down  in  a  skiff  with 
two  barrels  of  salt. 

How  many  boats  were  at  the  island? — Four. 

How  many  men  ? — I  can  not  tell  you  ;  but  I  suppose 
about  between  twenty  and  twenty-five  belonging  to  Col- 
onel Tyler's  boats.  When  I  arrived  at  the  island,  Blan- 
nerhassett  met  me. 

Did  you  see  any  arms  ? — I  saw  the  men  and  rifles.  I 
know  that  Mr.  Blannerhassett  took  away  with  him  one 
brace  of  horse  pistols  and  a  brace  of  pocket  pistols  and  a 
a  dirk.  Some  fusees  were  put  in  the  boat;  but  not  more 
than  three  or  four,  all  belonging  to  him. 


580  TRIAL   OF  AARON  BURR. 

And  what  arms  had  Tyler's  men? — Pistols,  dirks,  and 
rifles,  they  brought  there ;  but  all  were  not  armed  with 
rifles.  I  know  not  whether  they  were  armed  with  differ- 
ent things.  Some  of  the  men  had  guns,  some  had  dirks. 
Being,  as  how,  Mr.  Blannerhassett's  servant,  that  is  his 
groom,  I  went  down  to  the  river  with  him. 

Did  you  see  Taylor  and  Allbright  there  ? — I  knew 
Peter  Taylor  very  well.  I  saw  him  there  the  morning 
of  the  day  I  went  away  ;  and  I  saw  Allbright  also.  I  saw 
Mr.  Woodbridge  too. 

What  time  did  you  set  sail  ? — We  were  the  last  to  em- 
bark ;  and  we  started  between  twelve  and  one,  as  well  as 
I  can  recollect.  We  parted  with  General  Tupper  in  the 
greatest  friendship,  so  I  understood  from  others.  I  do 
not  know  that  I  saw  him.  I  was  the  last  man  who  went 
into  the  boat. 

Did  you  see  the  prisoner  on  the  island? — I  never  saw 
Mr.  Burr  on  the  island.  I  first  saw  him  at  Natchez  about 
two  and  a  half  years  ago. 

What  took  place  after  you  left  the  island? — That  night 
was  very  cold.  The  next  morning  we  stopped  and 
made  fires.  Mr.  Blannerhassett  and  Colonel  Tyler  went 
ashore  and  called  the  company  together;  and  the  best  I 
could  make  oufwas,  I  understood  that  the  Governor  of 
Ohio  had  uttered  state-warrants  against  Mr.  Blannerhas- 
sett and  Tyler  ;  and  that  they  wanted  to  make  their 
escape  as  fast  as  possible.  I  went  down  with  the  party 
to  Bayou  Pierre,  where 

Mr,  Burr  expressed  a  wish  that  the  attention  of  the 
witness  should  be  at  present  confined  to  the  transactions 
on  the  island.  He  said  that  gentlemen  ought  to  confine 
themselves  to  evidence  of  the  overt  act ;  that  they  would 
submit  the  question  to  the  court ;  that  it  would  be  too 
late  to  discuss  the  question,  whether  the  evidence  ought 
to  be  submitted  to  the  jury,  after  it  should  have  been  all 
heard. 

Mr.  Martin. — Gentlemen  had  better  confine  them- 
selves to  facts  within  the  district  of  Virginia.  When 
they  travel  beyond  the  district,  we  shall  have  some  im- 
portant questions  to  bring  forward.  We  shall  object  to 
the  production  of  such  evidence. 

Mr.  Hay  acquiesced  for  the  present  in  this  arrangement. 


TESTIMONY   OF    WILLIAM   LOVE.        581 

Mr.  Burr. — Were  not  some  of  Mr.  Blannerhassett's 
clothes  put  up  in  the  boats? — Yes. 

Did  you  not  assist  in  putting  those  things  in  the 
boats? — Yes. 

Were  not  his  books  put  in  boxes  and  trunks? — None 
that  I  ever  saw. 

How  long  had  you  lived  with  Blannerhassett? — Ten 
or  twelve  days  before  we  started. 

How  many  guns  had  the  party  ? — I  do  not  know  ; 
many  of  the  young  men  that  came  down  with  Tyler  were 
out  a-gunning. 

Did  you  see  anything  like  a  military  appearance  ? — 
The  men  were  in  a  state  of  preparation  to  defend  them- 
selves, because  they  expected  people  from  the  mouth 
of  the  Kenawa  to  attack  Blannerhassett  and  the  island. 
And  to  the  best  of  my  opinion,  they  did  not  mean  to  be 
killed,  without  some  return  of  the  shot.  It  was  said  at 
Marietta,  that  the  people  of  Kenawa  were  to  attack 
them  ;  and  I  suppose  they  would  have  done  their  best 
to  defend  themselves.  I  should  be  sorry  if  a  man  slapped 
me  on  my  face  without  returning  the  blow. 

Was  there  no  disturbance  among  the  party  on  the 
island? — None;  I  did  not  part  from  my  friends  in 
England  more  comfortably  than  in  parting  with  the  peo- 
ple on  the  island. 

Were  they  in  fear  of  being  attacked  when  they 
first  met  together? — Not  till  Tyler's  boats  came  down. 
I  do  not  recollect  to  have  seen  General  Tupper  there. 

Mr.  Parker  (one  of  the  jury). — Did  you  ever  see  all  the 
men  with  arms? — I  can  not  say  When  I  got  to  the 
mouth  of  Cumberland  river  I  saw  a  chest  of  arms 
opened. 

Mr.  Mac  Rae. — Were  any  chests  of  arms  put  into  the 
boats  when  you  left  the  island  ? — Not  that  I  know.  They 
might  or  might  not  have  been  put  on  board  without  my 
seeing  them.  Many  things  were  put  into  the  boats  before 
I  got  in. 

Mr.  Parker. — Had  you  no  conversation  with  Blanner- 
hassett about  the  expedition  ? — Only  that  if  I  did  not 
choose  to  go  with  him  he  would  recommend  me  to  some 
traveling  gentleman  as  a  servant  ;  or,  if  I  went  to  the 
.Washita,  he  would  make  me  a  present  of  a  piece  of  land. 


582  TRIAL     OF    AARON    BURR 

Mr.  Burr. — Did  you  see  any  arms  but  those  belonging 
to  Blannerhassett  ? — I  did  not. 

Did  you  see  any  guns  presented? — I  did  not. 

Were  they  mostly  young  gentlemen  who  came  in  the 
boats? — They  looked  like  young  gentlemen  in  that 
country. 

Mr.  Wirt. — Why  did  they  go  away  in  the  night? — 
They  were  afraid  of  being  taken  by  warrants  issued  by 
the  governor  of  Ohio. 

Mr.  Mac  Rae. — Was  the  chest  which  you  saw  opened 
at  the  mouth  of  Cumberland,  the  same  as  those  that  you 
saw  go  from  the  island  ? — No. 

What  did  you  think  of  this  business  ? — I  understood 
the  object  of  the  expedition  was  to  settle  Washita  lands. 

Mr.  Hay. — What  kind  of  looking  men  were  they? — 
They  looked  like  gentlemen  such  as  live  upon  their  own 
property. 

Did  they  look  like  men  used  to  work  ? — They  did  not. 

When  did  you  see  Mr.  Blannerhassett  that  night  down 
at  the  beach  ? — Late  that  night  ;  it  was  a  very  cold  night, 
raining  and  feezing;  it  was  generally  expected  that  the 
people  would  come  and  destroy  Blannerhassett's  house. 

Mr.  Parker  (one  of  the  jurymen). — Did  you  see  any 
bullets  run  ? — Yes ;  but  I  do  not  know  how  many.  I 
was  a  servant  in  the  house,  but  could  not  mind  my  own 
business  and  other  people's  too. 

DUDLEY  WOODBRIDGE  was  next  sworn. 

Mr.  Hay. — Were  you  on  the  island  when  the  boats 
left  it  ? — I  slept  there  that  night. 

Mr.  Wirt. — What  party  do  you  mean  ? — I  allude  to 
the  four  boats  with  Comfort  Tyler,  Mr.  Smith,  and  others. 

Were  you  at  the  boats? — I  passed  them  about  dusk. 

Did  you  see  any  of  the  men  ? — I  came  to  the  island 
about  dusk.  I  saw  five  or  six  standing  about  the  boats. 
I  went  directly  up  from  the  landing  to  the  house,  and 
saw  fifteen  or  twenty  men  in  one  of  the  rooms  of  Mr. 
Blannerhassett's  house. 

Had  they  any  arms  in  their  hands  when  you  saw  them  ? 
— I  recollect  to  have  seen  no  arms,  but  two  pair  of  pistols 
on  the  bureau  of  the  room  where  I  slept,  which  were  gone 
in  the  morning. 


TESTIMONY  OF  DUDLEY    WOODBRIDGE.  583 

Mr.  Hay. — Had  you  no  communication  with  Mr.  Burr 
or  Mr.  Blannerhassett  about  this  expedition?  Will  you 
inform  us  what  you  know  on  this  subject? — About  the 
beginning  of  September  or  last  of  August,  Mr.  Blanner- 
hassett (with  whom  I  had  been  connected  in  commercial 
business  for  six  or  eight  years  past,  under  the  firm  of 
Dudley  Woodbridge  and  Company)  called  with  Mr.  Burr 
at  our  counting-house  at  Marietta.  Mr.  Blannerhassett 
observed  that  Mr.  Burr  wished  us  to  purchase  a  quantity 
of  provisions.  I  am  not  positive  that  Mr.  Burr  was  pres- 
ent when  he  first  mentioned  the  subject,  but  I  think  he 
was.  Mr.  Burr  then  went  into  an  inquiry  about  the 
prices  of  different  kinds  of  provisions,  and  the  expense  of 
boats  best  calculated  to  carry  provisions  up  and  down 
the  river.  After  his  making  a  number  of  inquiries  and 
receiving  such  information  as  I  could  give  him,  he  left  a 
memorandum  of  such  provisions  as  he  wanted,  and  of  the 
boats  which  he  wished  to  have  built.  They  were  to  be 
on  the  Schenectady  model,  such  as  are  used  on  the  Mo- 
hawk fiver.  The  number  ordered  was  fifteen ;  only 
eleven  were  completed. 

What  were  their  dimensions? — Principally  ten  feet 
wide  and  forty  feet  long;  five  were  to  be  ten  feet  longer. 

What  provisions  were  ordered  ? — Pork,  flour,  whiskey, 
bacon  and  kiln-dried  meal ;  but  no  article  was  purchased 
but  pork,  the  prices  in  our  market  being  much  higher 
than  those  limited  in  the  memorandum.  I  immediately 
made  a  contract  with  Colonel  Barker  to  build  the  boats, 
and  proceeded  to  make  arrangements  for  purchasing  pro- 
visions. The  boats  were  built  up  the  Muskingum,  about 
seven  miles  above  Marietta,  and  were  to  be  delivered  on 
the  9th  of  December.  On  that  morning  when 'they  were 
to  be  brought  down  (the  Qth  of  December),  I  saw  some 
six  or  eight  armed  men  of  the  militia  going  to  take 
possession  of  the  boats.  I  set  off  for  Blannerhas- 
sett's  island,  but  met  Mr.  Blannerhassett,  Comfort 
Tyler,  Mr.  Smith,  and  some  young  men  from  Belpre' 
going  up  to  take  down  the  boats.  I  informed  them 
of  the  proceedings  at  Marietta,  and  advised  Mr. 
Blannerhassett  not  to  go  up.  After  some  consultation 
he  determined  not  to  go  up,  and  returned  to  the  island. 
I  went  back  to  Marietta  to  get  some  money  and  papers 


584  TRIAL     OF    AARON    BURR. 

and  returned  that  evening  to  the  island  after  getting 
the  papers. 

Mr.  Hay. — On  what  terms  was  the  contract  for  the 
boats  made? — I  made  the  contract  for  the  boats  with 
Mr.  Burr,  and  agreed  to  take  a  draft  on  New  York. 
When  Mr.  Blannerhassett  handed  me  the  draft,  I 
expressed  my  dissatisfaction  at  the  long  sight  at  which  it 
was  drawn  (being  ninety  days),  observing  that  it  would 
not  become  due  until  after  the  time  in  which  the  boats 
and  provisions  were  to  be  delivered,  and  that  I  wished 
to  run  no  hazard.  Mr.  Blannerhassett  with  some  warmth 
asked  me  if  I  doubted  Mr.  Burr's  honor?  When  I 
repeated  that  I  wished  to  run  no  risk,  he  said  that  he 
would  guarantee  the  draft  and  be  answerable  himself; 
and  that  in  the  event  of  its  not  being  paid,  I  might 
charge  it  to  him.  The  draft  was  drawn  by  Mr.  Burr  on 
Mr.  Ogden  of  New  York.  These  were  the  boats  which 
Smith,  Tyler,  Blannerhassett,  and  the  young  men  were 
going  up  to  receive. 

Mr.  Hay. — Do  you  recollect  where  the  boats  were  to 
be  delivered  by  the  contract  ? — Colonel  Barker  undertook 
to  bring  them,  but  there  was  no  contract  to  deliver  them 
at  any  particular  place. 

Mr.  Parker. — Did  you  say  that  it  was  the  Qth  day 
of  December  that  the  boats  were  to  go  away? — The 
boats  were  to  be  delivered  on  the  gth,  but  those  that 
were  at  the  island  went  away  on  the  roth,  When  Colo- 
nel Barker  was  bringing  them  to  Marietta,  they  were 
taken  by  General  Buel,  as  I  understood  by  order  of  the 
Governor  of  Ohio. 

Mr.  Mac  Rae. — State  what  occurrences  took  place  on 
the  islancl  ? — I  arrived  about  dusk,  and  immediately 
inquired  about  Mr.  Blannerhassett.  I  stated  to  him  that 
I  was  ready  to  adjust  our  partnership  concerns,  and  that  I 
had  brought  down  the  money  and  papers  for  that  purpose. 
We  went  upstairs  ;  we  were  two  hours  engaged  in  the 
business;  after  settling  which  I  set  off  to  go  across  the 
river  home,  and  met  Mr.  Belknap  at  the  shore.  He 
asked  me  to  go  back  with  him,  that  he  had  business  to 
do.  I  returned  with  him.  We  both  went  to  bed  at  nine 
o'clock  at  night,  where  I  remained,  and  did  not,  as  the 
witness  Peter  Taylor  states,  go  to  the  shore  with  the 


TESTIMONY  OF  DUDLEY    WOODBRIDGE.  585 

party  when  they  went  off.  His  saying  that  I  was  there 
then  is  a  mistake,  as  this  gentleman  [Mr.  Belknap]  can 
prove. 

Mr.  Hay. — State  to  the  court  and  jury,  for  whom  the 
boats  were  built.  Was  the  contract  made  for  the  com- 
pany ? — Yes  ;  it  may  be  so  considered  ;  but  it  was  not 
particularly  specified.  Mr.  Blannerhassett  first  introduced 
the  subject  and  Mr.  Burr  then  spoke.  As  to  the  use  for 
which  these  boats  were  intended,  Mr.  Blannerhassett 
made  some  communications  to  me  respecting  it.  Shall  I 
now  state  to  the  court  these  communications?  [He  was 
requested  to  proceed.]  Late  in  August  or  early. in  Sep- 
tember, Mr.  Blannerhassett  mentioned  to  me,  that  he 
had  embarked  in  an  enterprise  with  Mr.  Burr  ;  that  Gen- 
eral Eaton  and  some  others  were  engaged  in  it ;  and  that 
the  prospects  were  flattering.  Our  first  conversation 
lasted  but  a  few  minutes.  The  next  week  I  was  at  the 
island,  when  he  went  into  further  particulars.  From 
what  he  stated,  the  inference  I  drew  was,  that  his»object 
was  Mexico.  He  did  not  positively  say  so,  but  I  inferred 
it  from  several  circumstances,  particularly  from  a  map  of 
that  country  which  he  showed  me.  He  spoke  highly  of 
the  country  ;  stated  its  advantages,  wealth,  fertility,  and 
healthiness.  He  asked  me  if  I  had  a  disposition  to  join  ? 
I  evaded  his  question,  but  could  not  forbear  telling  him 
that  I  preferred  my  situation  to  an  uncertainty  (which 
was  the  same  as  declining  it).  On  the  way  up  to  Marietta 
he  observed,  that  he  did  not  wish  me  to  say  anything 
about  his  conversations  on  this  subject.  This  is  the  sub- 
stance of  my  testimony. 

Mr.  Hay. — Do  you  recollect  any  further  details  of  the 
plan  or  object  of  the  expedition  ? — I  do  not. 

Mr.  Hay. — What  became  of  the  boats  and  the  pork 
you  purchased  ? — The  pork  was  taken  and  sold  by  order 
of  the  president  or  government  ;  it  was  sold,  as  I 
understood,  by  General  Buel.  The  boats,  or  a  part 
of  them,  were  afterwards  fitted  out  by  the  government 
for  transports  to  convey  troops  from  Marietta  to  St. 
Louis. 

Mr.  Burr. — Do  you  recollect  that  I  told  you,  that 
I  wanted  the  description  of  boats  used  in  the  Mo- 
hawk river  ;  and  were  they  not  made  for  shoal  water,  and 


586  TRIAL     OF    AARON    BURR. 

to  go  up  the  stream  ? — You  did.  The  boats  were  to  be 
calculated  for  shallow  water. 

Mr.  Burr. — You  know  Mr.  Blannerhassett  well.  Was 
it  not  ridiculous  for  him  to  be  engaged  in  a  military  en- 
terprise ?  How  far  can  he  distinguish  a  man  from  a 
horse?  Ten  steps? — He  is  very  near-sighted.  He  can 
not  know  you  from  any  of  us,  at  the  distance  we  are  now 
from  one  another.  He  knows  nothing  of  military  affairs. 
I  never  understood  that  he  was  a  military  man. 

What  became  of  his  library? — Part  of  it  was  carried 
down  by  Mrs.  Blannerhassett ;  the  residue  was  left 
behind,  and  has  been- since  sold. 

Do  you  recollect  when  I  was  at  Marietta  ?  Was  it  not 
about  the  last  of  August  or  first  of  September?— I  left 
Philadelphia  about  the  middle  of  August,  and  on  my  re- 
turn, I  saw  you  about  the  time  you  mention.  I  have 
never  heard  that  you  have  been  there  since. 

What  became  of  the  draft  on  Mr.  Ogden  for  two  thou- 
sand dollars? — It  was  paid. 

What  of  quantity  pork  did  you  purchase  for  me  ? — 
About  one  hundred  barrels. 

At  what  price  ? — It  cost  about  twelve  and  was  charged 
at  thirteen  dollars  per  barrel. 

What  became  of  it? — I  stored  it  in  Mr.  Green's  cellar, 
adjoining  our  store;  it  was  taken  and  sold  by  General 
Buel,  by  order  of  the  government,  as  already  mentioned  ; 
that  is  as  I  understood. 

To  whom  did  you  consider  the  pork  as  belonging  when 
seized?  Whose  loss  was  it ?  Yours  or  mine? — It  may 
hereafter  become  a  dispute. 

What  were  the  boats  estimated  to  be  worth  ? — Colonel 
Barker's  bill  for  the  eleven  boats,  amounted  to  twelve 
or  thirteen  hundred  dollars. 

Mr.  Martin. — WTere  you  at  any  time  that  evening  on 
the  water's  side,  with  Mr.  or  Mrs.  Blannerhassett? — I  was 
not. 

Mr.  Wirt. — You  were  asked,  sir,  about  Mr.  Blanner- 
hassett's  military  talents  ?  Permit  me  to  ask  you  what 
were  his  pecuniary  resources ;  what  was  the  state  of  his 
money  matters  ? — I  believe  they  are  not  as  great  as  was  gen- 
erally imagined.  I  gave  him  six  thousand  dollars  for  one 
half  of  his  profits  of  our  business  ;  he  had  about  three 


TESTIMONY  OF  DUDLEY   WOODBR1DGE,   587 

thousand  dollars  in  stock  in  our  company's  concern.  His 
fortune  is  much  less  than  is  generally  understood.  He 
had  not  over  five  or  six  thousand  dollars  in  the  hands  of 
his  agent  at  Philadelphia.  His  island  and  improvements 
cost  about  forty  or  fifty  thousand  dollars.  It  would  not, 
however,  sell  for  near  that  sum,  except  to  a  person  of 
the  same  cast  with  Mr.  Blannerhassett.  After  building 
his  house,  his  property,  exclusive  of  the  island  and  five 
negroes,  amounted  probably  to  seventeen  thousand 
dollars. 

Mr.  Coleman  (a  juror). — Explain  again,  if  you  please, 
in  what  did  that  property  consist,  and  how  much  money 
could  he  command? — He  had  nine  thousand  dollars  in 
my  hands  in  stock  and  profits  already  stated,  and  about 
one  thousand  dollars  on  another  account,  and  the  money 
in  his  agent's  hands,  besides  his  island  and  negroes. 

Had  he  no  foreign  funds  ? — I  think  he  had  none.  They 
were  invested  in  American  stock  some  years  before. 

What -was  the  amount  of  property  he  had  in  these 
funds  ? — I  believe  the  property  left  him  by  his  father 
amounted  to  twenty  thousand  pounds  sterling,  which  he 
vested  in  British  three  per  cent,  stock. 

Mr.  Wirt. — Is  he  esteemed  a  man  of  vigorous  talents  ? 
—He  is;  and  a  man  of  literature.  But  it  was  mentioned 
among  the  people  in  the  country,  that  he  had  every  kind 
of  sense  but  common  sense  ;  at  least  he  had  the  reputa- 
tion of  having  more  of  other  than  of  common  sense. 

What  are  his  favorite  pursuits? — Chemistry  and 
music. 

Mr.  Hay. — Was  Mr.  Burr  to  have  returned  to  the 
island. — I  believe  so  ;  I  expected  him  to  have  returned 
in  about  two  months,  the  time  for  the  delivery  of  the 
boats. 

Had  you  received  any  money  from  Burr  before  the 
presentation  of  the  draft  by  Blannerhassett? — The 
draft  was  at  so  long  a  sight,  that  I  objected  to  letting 
the  property  out  of  my  hands,  till  I  was  secured  by  the 
responsibility  of  Mr.  Blannerhassett.  The  balance  over 
the  two  thousand  dollars  (the  amount  of  the  draft  on 
Ogden)  was  to  be  paid  by  Mr.  Burr  on  his  return.  He 
was  to  return  in  two  months  and  to  complete  the  pay- 
ment when  the  property  was  delivered. 


583  TRIAL   OF  AARON  BURR. 

Did  Mr.  Blannerhassett  bring  you  the  draft  ? — He  did  ; 
but  Burr  made  the  contract  with  me. 

Do  I  understand  you  correctly  in  supposing  that  Mr. 
Burr  contracted  to  pay  two  thousand  dollars  in  one 
draft,  and  the  balance  on  his  return  ? — You  do. 

Mr.  Lee. — How  many  acres  of  land  are  in  the  island  ? — 
Mr.  Blannerhassett  owned  about  one  hundred  and  eighty 
acres,  which  was  about  half  of  the  island,  and  cost  him 
about  five  thousand  dollars  ;  but  with  the  house  and  all, 
cost  him  forty  or  fifty  thousand  dollars,  as  already  ob- 
served. 

Mr.  Hay. — Was  not  one  of  the  boats  fitted  up  for  Mrs. 
Blannerhassett  and  family? — One  of  the  large  boats 
was.  Mr.  Blannerhassett  had  taken  a  keel  boat,  belong- 
ing to  the  firm,  up  to  Colonel  Barker's  to  be  fitted  up  for 
his  family:  but  by  Colonel  Barker's  advice,  he  concluded 
to  have  one  of  the  large  boats  prepared  for  that  purpose 
on  account  of  its  superior  accommodation.  This  was 
accordingly  done. 

Had  not  the  delivery  of  the  boats  been  interrupted 
by  the  armed  men,  would  they  not  have  been  delivered 
to  Blannerhassett  ? — I  suppose  they  would  have  been 
delivered  at  Marietta,  where  he  would  have  received 
them. 

Mr.  Martin. — Was  not  the  contract  made  by  Mr.  Burr 
with  your  firm  ? — It  was. 

Do  you  understand  that  Mr.  Burr  has  received  any  con- 
sideration for  this  sum  of  two  thousand  dollars  thus  paid  ? 
— I  do  not  know. 

Mr.  Wirt. — If  the  deliverey  of  these  boats  had  not 
been  prevented,  would  they  not  have  been  delivered  to 
Blannerhassett  or  Burr? — They  would  have  been  deliv- 
ered to  either.  The  company  contracted  for  them. 

Mr.  Hay. — If  delivered  to  Mr.  Blannerhassett,  would 
you  not  have  considered  yourself  as  delivering  them  to 
one  of  Burr's  associates  ? — I  can  not  say  what  I  should 
have  thought. 

Mr.  Burr. — How  came  you  to  suppose  yourself  autho- 
rized to  deliver  the  boats  to  Blannerhassett,  since  I  gave 
the  draft  ? — I  should  in  any  event  have  considered  myself 
justified  in  delivering  the  boats  to  him,  as  he  guaranteed 
the  payment  for  them,  and  he  had  property  to  a  larger 


TESTIMONY  OF  DUDLEY    WOODBRIDGE.  589 

amount  in  my  hands;  and  besides  these  considerations, 
early  in  September  Blannerhassett  had  mentioned  to  me 
his  having  joined  Mr.  Burr. 

Mr,  Baker. — Did  you  make  any  stay  upon  the  beach, 
on  the  night  of  their  departure  ? — I  did  not,  for  I  returned 
immediately  to  the  house  with  Mr.  Belknap.  < 

Mr.  Botts. — Were  the  people  peaceable  on  that  night  ? 
—Yes. 

Did  you  hear  any  noise  like  that  of  war,  the  roaring  of 
cannon  or  the  rattling  of  small  arms? — None. 

Mr.  Wirt. — Did  you  hear  any  alarm  in  the  evening 
about  the  militia  from  the  Ohio  side  ? — There  was  some 
alarm  in  the  evening. 

Mr.  Parker. — Did  Mr.  Burr  leave  the  island  before  Mr. 
Blannerhassett  communicated  to  you  his  being  joined 
with  him  ? — I  do  not  precisely  recollect  the  time  of  the 
communication  ;  but  I  knew  that  Blannerhassett  had  con- 
nected himself  with  him  in  the  same  enterprise,  and  I 
would  therefore  have  delivered  the  boats  to  him. 

Mr.  Co/eman.—  Was  Mr.  Blannerhassett's  determination 
to  go  away  the  effect  of  your  having  told  him  of  the 
armed  men  going  to  take  the  boats? — That  information 
might  have  operated  with  other  circumstances. 

Mr.  Parker. — Did  you  see  the  president's  proclamation 
on  that  day  ? — No  ;  that  was  Wednesday,  and  it  came 
next  Friday  by  the  mail.  It  was  handed  to  me  by  the 
postmaster.  I  did  not  hear  of  its  being  sent  otherwise. 
I  might  have  heard  of  it  before,  but  I  am  not  absolutely 
certain. 

Mr.  Mac  Rae. — Did  you  hear  anything  of  it  before  ? — 
I  do  not  recollect  distinctly.  I  believe  that  the  printer 
at  Marietta,  who  had  been  at  Pittsburg,  had  brought 
some  information  about  a  proclamation  ;  I  have  some 
idea  that  he  might  have  mentioned  that  he  had  seen  it. 

Mr.  Hay. — Did  you  hear  anything  of  a  state  warrant  ? 
—No.  I  did  hear  that  the  legislature  of  the  state  of 
Ohio  were  sitting  with  closed  doors,  in  consequence  of 
something  communicated  by  Mr.  Graham,  and  it  was 
probable  that  the  boats  would  be  stopped,  and  that  they 
would  suppress  the  enterprise. 

Mr.  Wickham. — Did  you  understand  that  Blannerhas- 
sett's boats  or  the  people  on  the  island  would  be  taken  ? 


590  TRIAL     OF    AARON    BURR. 

— I  did  not  suppose  that  they  would  go  to  Virginia;  but 
that  they  would  only  stop  the  boats  that  were  built  pursu- 
ant to  his  contract  up  the  Muskingum. 

Mr.  Hay. — What  was  the  cause  of  .his  precipitate  flight  ? 
Did  you  hear  any  particular  observations  from  any  of 
the  party  on  the  island? — Mr.  Blannerhassett  told  me 
that  he  would  go  off  in  three  or  four  hours  ;  and  I  heard 
Comfort  Tyler  say,  that  he  would  not  resist  the  consti- 
tuted authorities,  but  that  he  would  not  be  stopped  by  a 
mob. 

Mr.  Wirt. — At  the  time  he  said  so  was  the  legislature 
of  Ohio  understood  to  be  in  session  with  closed  doors? — 
It  was;  and  I  saw  the  militia  of  Wood  county  assembled 
the  next  day  or  the  day  after. 

Mr.  Burr. — Was  there  not  some  danger  of  being 
stopped  by  the  ice  if  they  had  not  gone  off  as  soon  as 
they  did? — I  thought  so  ;  and  that  it  was  also  hazardous 
for  Mrs.  Blannerhassett  to  go.  Tyler  was  detained  two 
days  by  Blannerhassett. 

Mr.  Mac  Rae. — Did  Blannerhassett  that  night  commu- 
nicate his  apprehensions  to  you? — He  did  not. 

Mr.  Burr. — Were  Tyler's  party  disorderly? — They  were 
not. 

Did  they  do  any  mischief?  Were  they  guilty  of  any 
misconduct  ? — None. 

THURSDAY,  August  2oth,  1807. 

The  court  met  at  the  usual  hour,  when  a  desultory  dis- 
cussion took  place,  in  which 

Mr.  Burr  and  his  counsel  insisted  that  the  counsel  for 
the  prosecution  should  produce  all  the  evidence  which 
they  had,  relative  to  the  overt  act,  before  they  attempted 
to  offer  any  collateral  testimony;  and  again  reminded 
them,  that  as  soon  as  all  their  testimony  on  that  point 
was  introduced,  they  had  certain  propositions  to  submit 
to  the  court. 

The  counsel  for  the  prosecution  said  that  they  had 
some  more  evidence  to  introduce  on  this  point,  and 

SIMEON  POOLE  was  then  sworn. 

Mr.    Hay. — Be    so    obliging    as    to    say    what    you 


TESTIMONY    OF    SIMEON   POOLE.        591 

know    with    respect   to    the   men    on    Blannerhassett's 
island. 

Simeon  Poole. — I  never  was  on  the  island  at  that  time  ; 
but  was  opposite  to  it.  I  saw  boats  and  men  there,  if  I 
mistake  not,  on  the  loth  of  December.  I  arrived  oppo- 
site the  island  about  dusk,  at  the  distance  of  about  one 
hundred  and  fifty  or  two  hundred  yards  from  it.  I  do 
not  know  how  many  boats  there  were.  I  saw  people 
walking  about  in  the  evening;  and  in  the  course  of  the 
night  they  kindled  a  fire  and  I  saw  some  persons  by  the 
light  that  appeared  to  be  armed,  as  if  they  were  sen- 
tinels. 

Mr.  Hay. — Why  did  you  think  they  were  so? — I  don't 
know  that  they  were ;  but  they  appeared  so  to  my  view. 
I  don't  know  positively  what  they  were,  but  they  appeared 
to  have  guns,  and  looked  like  sentinels.  I  did  not  go 
over  that  night,  nor  did  I  offer  to  go.  Boats  were  pass- 
ing and  repassing  during  the  night  from  the  island  to 
the  mainland. 

To  whom  did  these  boats  belong? — I  do  not  know,  but 
I  presume  to  the  island.  There  were  large  boats  at  the 
landing,  but  these  were  small  boats.  I  did  not  speak  to 
them.  I  stood  as  much  undiscovered  as  possible,  as  I 
was  authorized  by  the  governor  of  Ohio  to  apprehend 
Blannerhassett ;  I  went  for  that  purpose. 

Do  you  recollect  any  indications  of  arrangements 
about  a  watch-word? — Yes.  In  the  course  of  the 
evening  I  saw  that  some  boats  crossed  ;  and  when  a  par- 
ticular word  was  given,  I  observed  that  there  were  some 
that  did  not  cross.  I  heard  others  that  were  hailed  across 
and  a  word  given.  They  would  hail  for  a  boat.  The 
people  on  the  island  would  ask,  "  What  boat  ?"  If  the 
answer  was,  I's  boat,  the  boat  immediately  put  off. 

Mr.  Parker. — On  what  occasion  was  the  watch-word 
used? — When  the  people  on  the  Ohio  side  wanted  to  go 
across,  they  would  hail  or  call  for  a  boat  ;  the  people  on 
the  island  would  ask,  "  What  boat  ?"  and  if  the  answer 
were  I's  boat,  the  boat  would  immediately  put  off. 

Mr.  Burr. — Till  what  hour  did  you  stay  out  that  night  ? 
— I  imagine  it  was  as  late  as  ten  o'clock. 

Was  it  not  cold  enough  to  render  a  fire  pleasant  ?— -It 
was. 


592  TRIAL     OF    AARON    BURR. 

Is  it  not  usual  for  boats  to  build  fires  on  the  bank,  when 
it  is  so  cold  ? — It  is.  There. seemed  to  be  a  considerable 
number  of  men  on  the  island  that  evening,  going  up  and 
down,  to  and  from  the  house.  The  witness  further  ob- 
served, that  lanterns  were  passing  during  the  night,  be- 
tween the  house  and  boats,  as  if  there  were  business  be- 
tween them;  that  he  could  not  say  whether  the  persons 
whom  he  had  called  sentinels  were  not  merely  loitering 
around  the  fire  ;  that  he  thought  it  likely,  that  if  he  too 
had  used  the  watch-word,  the  boats  would  have  put  off  for 
him  ;  that  he  lived  on  the  Ohio  side  ;  that  he  could  not 
distinguish  well,  but  he  apprehended  that  some  of  them 
had  guns  ;  but  most  of  the  people  were  without  guns. 

Do  you  not  commonly  hail  boats,  when  you  wish 
to  cross  the  river  ?  —  It  is  not  common  to  give 
a  word.  There  were  several  boats  hailed  by  people 
who  did  not  use  that  word  ;  and  these  people  were  not 
sent  for ;  but  there  was  no  instance  where  the  boat  was 
not  sent  for  the  party  hailing  where  that  watch-word  was 
used. 

MAURICE  P.  BELKNAP  was  then  sworn. 

Mr.  Hay. — Will  you  tell  us,  sir,  what  you  saw  on  the 
island  ? 

Mr.  Belknap. — On  the  evening  of  the  loth  of  Decem- 
ber, I  was  at  the  island  of  Mr.  Blannerhass,ett.  I  arrived 
there  between  eight  and  nine  o'clock  in  the  evening.  I 
hailed  a  boat,  and  they  asked  my  name.  Having  given 
it,  a  skiff  was  immediately  sent  over  with  two  of  Blan- 
nerhassett's  servants.  Having  crossed,  I  met  with  Mr. 
Woodbridge,  who  returned  to  the  house  with  me.  When 
I  went  into  the  house,  I  observed  in  the  room,  when  I 
first  entered,  a  number  of  men,  who,  from  the  promiscu- 
ous view  I  had  of  them,  might  have  been  about  twenty. 

Mr.  Hay. — What  were  they  doing  ? — The  two  or  three 
I  noticed  near  the  door  had  rifles,  and  appeared  to  be 
cleaning  them.  These  were  all  the  arms  I  saw  ;  for  I 
merely  passed  through  the  room  where  they  were.  Near 
the  place  where  I  landed,  there  appeared  to  be  two  or 
three  boats,  and  people  about  them.  It  was  a  dark  even- 
ing, and  the  lights  in  the  boats  was  the  only  circumstance 
which  made  me  notice  them. 


TESTIMONY    OF    EDMUND    P.     DANA.   593 

Mr.  Burr. — Did  you  give  a  watch-word  when  they 
brought  you  over  ? — I  gave  no  watch-word,  I  only  gave 
my  name  ;  but  they  brought  me  over. 

i 

EDMUND  P.  DANA  was  next  sworn. 

Mr.  Dana. — I  never  saw  Mr.  Burr  on  the  island. 

Mr.  Hay. — Will  you  state  what  you  know  about  their 
number  and  arms? — On  the  evening  of  the  loth  of  De- 
cember, I  understood  that  the  boats  were  to  start  with 
Comfort  Tyler  and  his  men  down  the  river.  Two  other 
young  men  and  myself  were  determined  to  cross  over 
from  Belpre,  where  I  live,  to  the  island.  We  went  down 
to  the  landing  opposite  the  island  about  dusk,  took  a 
skiff  and  landed  at  the  upper  part  of  the  landing.  We  then 
went  up  to  the  house.  Tyler's  boats  lay  below  our  own^ 
about  seven  or  eight  rods.  I  heard  some  person  talking 
on  board,  but  it  was  dark  and  I  could  not  distinguish 
any  one.  We  went  into  the  hall,  a  large  room,  where 
there  were  a  number  of  men.  I  remained  but  a  short 
time  and  did  not  count  them.  I  can  not  say  how  many 
there  were,  but  I  should  judge  there  were  about  fifteen 
or  sixteen.  One  of  them  was  running  some  bullets  ;  and 
there  was  nothing  but  hub-bub  and  confusion  about  the 
large  fire.  I  was  then  introduced  into  a  chamber  where 
there  were  Colonel  Tyler,  Blannerhassett,  Mr.  Smith  of 
New  York  as  they  said,  and  three  or  four  other  gentle- 
men. I  was  introduced  to  Mr.  Smith  and  Doctor  M'Cas- 
sley  (or  M'Castle)  who  had  his  lady,  if  I  mistake  not, 
there.  I  had  been  introduced  to  Colonel  Tyler  the  day 
before. 

Mr.  Randolph. — Were  you  a  perfect  stranger  to  the 
people  in  the  hall  ? — I  was. 

Was  there  any  alarm  on  your  going  in  ?^— They  did  not 
appear  to  be  alarmed. 

Mr.  Coleman  (one  of  the  jury)  addressed  the  court. — Is 
it  proper  to  ask  any  questions  about  the  conversations 
which  took  place  with  those  gentlemen  ? 

Cliief  Justice. — It  is  left  to  the  consent  of  the  ac- 
cused. 

Mr.  Burr. — If  any  of  the  jury  think  proper,  I  have  no 
objection.  [The  inquiry  was  not  pressed.] 

Before  the  examination  of  Mr.  Belknap  and  Mr.  Dana, 
i.-38 


594  TRIAL    OF  AARON  BURR. 

an  interesting  and  animated  discussion  took  place  at  the 
bar. 

Mr.  Burr  and  his  counsel  objected  strongly  to  the  in- 
troduction of  collateral  evidence,  and  insisted  strenuous- 
ly that  the  counsel  for  the  prosecution  should  adduce, 
without  further  delay,  all  the  testimony  which  they  had 
relating  to  any  overt  acts  alleged  to  have  been  committed  ; 
that  they  had  already  submitted  to  too  much  irrelevant 
evidence;  that  it  could  not  be  denied  that  Mr.  Burr  was 
at  a  great  distance,  in  the  state  of  Kentucky,  when  these 
acts  were  alleged  to  have  been  committed  on  Blanner- 
hassett's  island  ;  and  that  the  relevancy  or  irrelevancy  of 
the  collateral  proof  offered,  depended  entirely  on  the  ex- 
istence of  those  acts.  They  insisted,  that  notwithstand- 
ing the  numerous  efforts  and  prejudices  which  had  been  so 
artfully  and  zealously  excited,  and  so  industriously  spread 
throughout  the  country,  there  had  not  been  any  act  of 
war,  tumult  or  insurrection,  nor  even  the  semblance  of 
an  overt  act  ;  that  they  had  a  right  to  have  the  opinion 
of  the  court  on  the  subject,  and  would  insist  on  exercis- 
ing it  as  soon  as  the  testimony  relating  to  the  overt  acts 
of  this  pretended  war  was  all  introduced  ;  and  if  gentle- 
men had  any  more  such,  they  insisted  on  its  immediate 
production,  or  that  they  would  proceed  to  make  their 
intended  application  to  the  court. 

The  counsel  for  the  prosecution  opposed  this  mode  of 
proceeding.  They  contended  that  it  was  unusual,  irreg- 
ular and  improper;  that  the  whole  evidence  should  be 
submitted  to  the  jury,  whose  province  it  was  to  decide 
whether,  according  to  the  exposition  of  the  law  by 
the  court,  there  had  been  war  or  not ;  that  the  counsel 
for  the  accused  might,  when  the  whole  should  have  been 
laid  before  the  court,  move  the  court  to  instruct  the  jury 
on  the  law,  or  make  such  other  motions  or  propositions 
as  they  might  deem  proper ;  that  to  decide  whether 
overt  acts  had  been  committed  or  not,  was  an  inquiry  of 
fact,  not  of  law  ;  that  though  the  court  had  a  right  to 
expound  the  law,  and  explain  what  in  law  constituted  an 
overt  act,  yet  it  could  not  stop  the  prosecution,  and  say  to 
the  jury  that  no  overt  act  was  committed  ;  that  it  was  evi- 
dent that  the  object  of  attempting  thus  to  arrest  the  in- 
quiry, was  to  prevent  the  public  from  seeing  and  knowing 


OBJECTION   TO   COLLATERAL  EVIDENCE.^ 

what  had  been  done  and  which  ought  to  be  known,  that  the 
question  was  not,  where  the  accused  was  when  the  trea- 
son was  committed,  but  whether  he  procured  it  or  had  a 
part  in  it?  and  that  as  the  objection  of  the  accused  to 
the  evidence  offered  by  the  prosecution  was  irregular  and 
improper,  it  ought  to  be  disregarded  by  the  court. 

It  was  admitted  that  Mr.  Burr  was  in  Kentucky  at 
the  time  when  the  acts  charged  in  the  indictment  were 
committed.  It  was  stated  that  several  witnesses  were 
present  ready  to  prove  it. 

After  some  further  desultory  remarks  at  the  bar, 

The  Chief  Justice  said  that  there  was  no  doubt  that 
the  court  must  hear  the  objections  to  the  admissibility 
of  the  evidence  ;  that  it  was  a  right,  and  gentlemen 
might  insist  on  it ;  but  he  suggested  the  propriety  of 
postponing  their  motion. 

Mr.  Hay  admitted  their  right  to  object  to  the  intro- 
duction of  evidence  ;  but  contended  that  the  course  they 
now  adopted  was  irregular.  He  stated  that  they  had 
some  other  witnesses  to  examine  on  the  same  point, 
whom  they  wished  to  introduce. 

As  soon  as  Messrs.  Belknap  and  Dana  were  examined, 

Mr.  Botts  moved  the  court  to  direct  the  marshal  to 
make  payment  daily  of  their  allowance  to  about  twenty 
witnesses,  summoned  for  the  accused,  most  of  \vhom 
were  so  poor  that  they  could  not  subsist  without  it.  He 
had  hoped  the  marshal  would  have  paid  them  without 
this  application.  Mr.  Burr  thought  them  material,  and 
summoned  them  from  the  best  information  he  could  ob- 
tain ;  and  when  the  United  States  even  imprisoned  wk- 
nesses  to  compel  their  attendance,  those  of  the  accused 
ought  at  least  to  be  supplied  with  the  means  of  subsist- 
ence. 

The  marshal  said  that  as  the  number  of  witnesses  was 
so  great,  many  of  them  were  said  to  know  nothing 
of  the  subject  in  controversy,  he  was  cautioned  by 
the  attorney  for  the  United  States,  not  to  pay  them 
till  their  materiality  was  ascertained  or  till  the  court  or- 
dered him. 

Mr.  Hay  said  that  the  expenses  were  so  enormous 
that  they  would  be  felt  by  the  national  treasury  though 
it  was  full.  This  justified  the  caution  alluded  to;  and 


596  TRIAL     OF    AARON    BURR. 

the  laws  c6ntemplat.ed    to  pay  the  witnesses  as  soon   as 
they  gave  their  evidence. 

Mr.  Burr  said  that  when  the  attorney  cautioned  the 
marshal,  it  was  supposed  that  he  had  summoned  between 
two  and  three  hundred  witnesses,  whereas  the  truth  was 
that  they  did  not  exceed  twenty ;  that  they  were  mate- 
rial •  that  some  of  £hem  were  summoned  to  repel  what 
might  be  said  by  the  witnesses  for  the  United  States  ; 
that  the  United  States  had  many  advantages  in  com- 
manding the  attendance  of  their  witnesses,  which  he  had 
not ;  that  he  would  not  acquiesce  in  the  establishment 
of  a  principle  that  might  prove  injurious  to  others  ;  that 
the  witnesses  ought  to  be  paid,  and  he  hoped  that  there 
would  be  no  more  difficulty  made  on  the  subject. 

After  some  more  desultory  observations,  as  the  wit- 
nesses were  stated  and  considered  to  be  material,  the 
court  directed  the  payment  to  made  by  the  marshal. 

Mr.  Wickham  then  renewed  the  subject  of  objecting 
to  the  evidence;  and  again  urged  the  gentlemen  who 
prosecuted,  to  adduce,  if  they  could,  anymore  testimony 
in  support  of  what  fhey  deemed  the  overt  acts. 

Mr.  Hay  objected  to  their  course  of  proceeding,  but 
added  that  he  had  only  one  or  two  more  witnesses  on 
that  point,  who  were  then  absent,  and  if  gentlemen  were 
determined  to  make  their  motion  they  might  proceed. 

Mr.  Wickham  then  addressed  the  court. 

May  it  please  the  court :  The  counsel  for  the  prosecu- 
tion having  gone  through  their  evidence  relating  directly 
to  the  overt  act  charged  in  the  indictment,  and  being  about 
to  introduce  collateral  testimony  of  acts  done  beyond 
the  limits  of  the  jurisdiction  of  this  court,  and  it  not  only 
appearing  from  the  proofs,  but  being  distinctly  admitted 
that  the  accused,  at  the  period  when  war  is  said  to  have 
been  levied  against  the  United  States,  was  hundreds  of 
miles  distant  from  the  scene  of  action,  it  becomes  the 
duty  of  his  counsel  to  object  to  the  introduction  of  any 
such  testimony  ;  as,  according  to  our  view  of  the  law  on 
this  subject,  it  is  wholly  irrelevant  and  inadmissible. 

It  is  not  without  reluctance  that  this  measure  is  resort - 

'ed    to.     Our    client    is  willing  and    desirous,  that    at   a 

proper  time,  and  on  a  fit  occas'ion,  the  real  nature  of  the 

transactions  which  have  been  magnified  into   the  crime 


ARGUMENT  OF  MR.    WICKHAM.          597 

of  treason,  should  be  fully  disclosed  ;  and  unless  he  be 
greatly  mistaken  it  is  now  in  his  power  to  adduce  strong 
and  conclusive  testimony  in  direct  opposition  to  that 
which  has  been  relied  on  in  behalf  of  the  prosecution. 
But  if  we  may  calculate  from  the  time  that  has  been  al- 
ready consumed  in  the  examination  of  the  small  number 
of  witnesses  that  have  yet  been  introduced,  out  of  about 
one  hundred  and  forty  that  have  been  summoned  on 
the  part  of  the  United  States,  it  is  hardly  possible  that 
an  opportunity  will  be  afforded  him  of  calling  a  single 
witness  before  the  jury.  Weeks,  perhaps  months,  will 
pass  away  before  the  evidence  for  the  United  States  is 
closed  ;  and  at  this  unfavorable  season,  nothing  is  more 
likely  than  that  the  health  of  some  one,  and  perhaps 
more  of  the  jury,  will  be  so  far  affected  by  the  climate  and 
confinement,  as  to  render  it  impossible  to  proceed  with 
the  trial.  Should  such  an  event  happen,  the  cause  must 
lie  over,  and  our  client,  innocent,  as  we  have  a  right  to 
suppose*  him,  may  be  subjected  to  a  prolongation  of  that 
confinement  which  is  in  itself  a  severe  punishment.  The 
jury  too  are  placed  under  very  unpleasant  restraints,  and 
it  would  be  an  act  of  injustice  to  them,  as  well  as  to  him, 
to  acquiesce  in  a  course  of  proceeding  which  would  draw 
out  the  trial  to  an  immeasurable  length  ;  and  which  we 
conceive  to  be  neither  conformable  to  the  rules  of  law  nor 
consistent  with  justice. 

Hitherto  the  counsel  for  the  United  States  have  taken 
frequent  occasions  to  declare  their  belief  of  the  guilt  of 
the  accused.  On  the  motion  I  am  about  to  make,  argu- 
ments drawn  from  this  topic  will  have  no  application. 
The  question  will  turn  on  abstract  principles  which  will 
neither  be  changed  nor  affected  by  his  innocence  or  guilt. 
The  foundation  on  which  this  prosecution  must  rest,  and 
which  I  should  hope  had  not  been  seen  or  attended  to 
by  the  counsel  for  the  United  States  themselves,  will  be 
exposed  to  view ;  and  it  will  be  for  them  to  determine 
whether  it  shall  be  abandoned  or  maintained  by  doc- 
tines  incompatible  with  our  republican  institutions,  and 
utterly  inconsistent  with  every  idea  of  civil  liberty. 

In  combating  these  doctrines  we  shall,  so  far  as  we  are 
able,  support  the  cause,  not  of  our  client  alone,  but  of 
every  citizen  of  the  United  States,  and  of  future  genera- 


598  TRIAL    OF    AARON    BURR. 

tions ;  for  as  to  the  establishment  of  the  principle,  it 
ought  not  to  be  considered  as  his  cause  alone,  but  as  the 
cause  of  every  member  of  the  community  and  of  pos- 
terity. 

The  first  position  I  shall  lay  down,  is,  that  no  person 
can  be  convicted  of  treason  in  levying  war,  who  was  not 
personally  present  at  the  commission  of  the  act,  which  is 
charged  in  the  indictment  as  constituting  the  offense. 

The  3d  section  of  the  3d  article  of  the  constitution  of 
the  United  States,  declaring  that  "  treason  shall  consist 
only  in  levying  war  against  them,  or  in  adhering  to  their 
enemies,  giving  them  aid  and  comfort,"  and  that  "  no 
person  shall  be  convicted,  unless  on  the  testimony  of 
two  witnesses  to  the  same  overt  act,"  there  can  be  no 
doubt,  if  the  words  be  construed  according  to  their  nat- 
ural import,  that  it  is  necessary,  in  order  to  fix  the  guilt 
of  the  accused,  to  prove  by  two  witnesses,  that  he  com- 
mitted an  act  of  open  hostility  to  the  government,  at  the 
place  charged  in  the  indictment. 

But  artificial  rules  of  construction,  drawn  from  the 
common  law  and  the  usages  of  courts  in  construing  sta- 
tutes, are  resorted  to  in  order  to  prove  that  these  words 
of  the  constitution  are  to  be  construed,  not  according  to 
their  natural  import,  but  that  an  artificial  meaning  drawn 
from  the  statute  and -common  law  of  England,  is  to  be 
affixed  to  them  totally  different. 

In  the  first  place,  I  deny  that  any  such  rules  of  con- 
struction, however  just  they  may  be  when  applied  to 
a  statute,  can  be  properly  used  with  reference  to  the 
constitution  of  the  United  States. 

This  instrument  is  a  new  and  original  compact  be- 
tween the  people  of  the  United  States,  embracing  their 
public  concerns  in  the  most  extensive  sense  ;  and  is  to 
be  construed,  not  by  the  rules  of  art  belonging  to  a  par- 
ticular science  or  profession,  but,  like  a  treaty  or  na- 
tional compact,  in  which  the  words  are  to  be  taken  ac- 
cording to  their  natural  import  unless  such  a  construc- 
t  i  would  lead  to  a  plain  absurdity,  which  can  not  be 
pretended  in  the  present  instance. 

It  being  new  and  and  original  and  having  no  reference 
to  any  former  act  or  instrument,  forbids  a  resort  to  any 
other  rules  of  construction  than  such  as  are  furnished  by 


ARGUMENT    OF    MR.     WICK  HAM.        599 

the  constitution  itself,  or  the  nature  of  the  subject.  If  I 
be  correct  in  this,  there  is  an  end  to  all  further  inquiry. 
It  is  not  necessary  to  resort  to  artificial  rules  of  con- 
struction. The  words  of  the  constitution,  "  levying  (or 
making)  war,"  are  plain  and  require  no  nice  interpreta- 
tion :  and  with  respect  to  the  other  clause,  "  adhering  to 
their  enemies,"  &c.,  it  is  a  matter  of  no  consequence  here 
what  may  be  its  correct  exposition,  for  the  common- 
wealth has  no  enemies.  The  counsel  for  the  United 
States  will  not  contend  that  the  words,  used  in  their  na- 
tural sense,  can  embrace  the  case  of  a  person  who  never 
himself  committed  an  act  of  hostility  against  the  United 
States,  and  was  not  even  present  when  one  was  com- 
mitted. 

But  they  will  insist  that  these  words  in  the  constitu- 
tion are  to  have  an  artificial  meaning,  such  as  they  con- 
tend has  been  given  them  in  the  courts  in  England  ;  and 
that  in  that  country,  all  persons  aiding  and  abetting 
others  in  the  act  of  levying  war  against  the  government, 
are  guilty  of  treason,  though  not  personally  present. 

I  shall  contend  first,  that  notwithstanding  some  dicta 
of  law-writers  to  the  contrary,  no  such  rule  has  practi- 
cally obtained  in  that  country  ;  and  that  the  decisions, 
entitled  to  any  respect,  lead  to  an  inference  directly  con- 
trary. 

And  secondly,  that  if  I  be  wrong  in  this,  the  princi- 
ple adopted  there  can  not  apply  to  treasons  under  the 
constitution  of  the  United  States. 

I  shall  admit  that  Lord  Coke  and,  after  him,  other 
writers  who  are  deservedly  revered,  have  laid  down  as  a 
general  position,  that  there  are  no  accessories  in  treason 
either  before  or  after  the  fact,  but  that  all  are  princi- 
pals. 

But  no  adjudictions,  in  the  case  of  an  accomplice  in 
the  nature  of  an  accessory  before  the  fact,  bear  them  out 
in  it,  except  that  of  Sir  Nicholas  Throgmorton,  reported 
I  State  Trials,  pp.  63  to  78  ;  and  the  conduct  of  the  court 
on  that  occasion  was  so  obviously  contrary,  not  only  to  the 
rules  of  law  and  justice,  but  even  to  those  of  decency,  that 
I  persuade  myself  the  counsel  on  the  other  side  will  not 
rely  on  it  as  an  authority. 

A  very  faithful  and  correct  account  of  it  is  given   by 


6oo  TRIAL     OF    AARON    BURR. 

Judge  Tucker  in  his  appendix  to  4th  Blackstone's  Com- 
mentaries, note  b,  p.  44.  He  contests  the  doctrine  ad- 
vanced at  this  day,  "  that  whatever  will  make  a  man  an 
accessory  in  felony,  will  make  him  a  principal  in  treason." 
He  shows  that  it  is  derived  from  three  original  cases 
only;  and  then  proceeds  thus,  "  This  doctrine  appears  to 
have  slept  from  the  year  1488,  to  the  year  1554, 
when  it  was  revived  upon  the  trial  of  Sir  Nicholas 
Throgmorton,  in  the  first  year  of  the  reign  of  Queen  Mary. 
He  was  indicted,  I.  For  conspiring  and  imagining  the 
death  of  the  queen  ;  2.  For  levying  war  against  her 
within  the  realm ;  3.  For  adhering  to  her  enemies 
within  the  realm,  giving  them  aid  and  comfort ; 
4.  For  conspiring  and  intending  to  depose  the 
queen;  5.  For  traitorously  devising  and  concluding  to 
take  the  of  Tower  London.  Upon  his  trial,  Stanford, 
author  of  the  Pleas  of  the  Crown,  and  Dyer,  afterwards 
chief  justice,  assisted  in  the  prosecution,  as  queen's  ser- 
geants. Bromley,  chief  justice  of  England,  who  appears 
to  have  been  another  Jefferies,  and  Sir  Nicholas  Hare, 
master  of  the  rolls,  a  fit  associate  for  him,  and  Sir  Roger 
Cholmley,  one  of  the  same  stamp,  were  among  the  num- 
ber of  his  judges,  and  managed  the  trial.  At  this  trial, 
the  doctrine  of  constructive  treason  in  its  fullest  extent 
was  insisted  on  by  the  counsel  for  the  prosecution,  and 
sanctioned  by  the  judges,  notwithstanding  the  prisoner 
reminded  the  court  of  a  statute,  passed  not  six  months 
before,  whereby  it  was  declared,  that  no  offense  made 
treason  by  act  of  parliament  should  thereafter  be  held  to 
be  treason,  except  such  as  were  so  declared  by  the  sta- 
tute 25  Edw.  3,  which  statute  he  desired  might  be  read 
to  the  jury.  The  court  told  him  there  should  be  no 
books  brought  at  his  request ;  they  knew  the  law  suffi- 
ciently without  book ;  it  was  not  their  business  to  pro- 
vide books  for  him,  neither  did  they  sit  there  to  be 
taught  by  him.  If  anything  more  be  requisite  to  show 
the  respect  due  to  the  decisions  of  the  court,  it  may  not 
b£  amiss  to  mention,  that  they  ordered  a  person,  whom 
the  prisoner  called  as  a  witness,  on  his  behalf,  out  of 
court.  That  one  Vaughan,  who  was  under  sentence  of 
death,  and  whose  execution  was  respited  that  he  might 
be  present  at  this  trial,  was  admitted  as  an  evidence 


ARGUMENT    OF    MR.      WICKHAM.         60 1 

against  him.  That  the  confessions  of  one  Winter  and 
one  Crofts,  then  alive  and  in  custody,  were  read  in  evi- 
dence against  him,  the  witnesses  themselves  not  being 
produced  in  court.  These  words  of  the  statute  25  Edw. 
3,  '  and  be  thereof  attainted  of  open  deed  by  people  of 
their  condition,'  which  Sir  E'dvvard  Coke  and  every  other 
writer  on  criminal  law  from  his  time  to  this,  expounds 
to  mean,  by  verdict  of  a  jury  of  their  peers,  were  thus 
expounded  by  the  chief  justice  addressing  himself  to  the 
prisoner:  'You  deceive  yourself,  and  mistake  these 
words  by  people  of  their  condition  ;  for  thereby  the  law 
doth  understand  the  discovering  of  your  treasons.  As 
for  example,  Wyatt  and  other  rebels,  attainted  for  their 
great  treasons,  already  declare  you  to  be  his  and  their  ad- 
herent, inasmuch  as  divers  and  sundry  times  you  had 
conference  with  him  and  them  about  the  treason  ;  so 
as  Wyatt  is  now  one  of  your  condition,  who,  as  the 
world  knoweth,  hath  committed  an  open,  traitorous  fact.' 
The  word  'enemies'  was  likewise  expounded  to  mean 
traitors  within  the  statute.  And  lastly,  when  the  jiyy 
brought  in  a  verdict  of  acquittal  (for  there  was  no  evi- 
dence against  the  prisoner  on  either  point),  the  court  im- 
mediately committed  them  all  to  prison,  and  some  of 
them  were  fined  two  thousand  pounds,  some  one  thou- 
sand pounds,  and  the  lowest  paid  threescore  pounds 
apiece,  before  they  were  discharged  from  their  imprison- 
ment. Stamford,  who  was  active  in  the  prosecution, 
was  afterwards  promoted  to  the  bench,  and  published 
his  pleas  of  the  Crown,  in  1560,  six  years  after,  in  which 
he  has  laid  down  the  doctrine  at  large,  as  it  is  received 
at  this  day,  but  cites  the  case  3  Hen.  7,  10,  before  men- 
tioned in  support  of  it.  Abington's  case  was  resolved, 
when  Sir  Edward  Coke  was  attorney-general,  in  the 
fourth  year  of  James  the  first,  when  the  spirit  of  perse- 
cution was  at  its  height,  from  the  terrors  of  the  powder- 
plot,  in  the  guilt  of  which  the  prisoner  was  involved,  by 
receiving  one  Garnett,  a  Jesuit,  knowing  him  to  be  guilty 
of  the  powder  treason.  It  is  not  improbable,  however, 
that  this  doctrine  was  aided  in  its. progress,  by  the  sta- 
tutes which  passed  in  the  reign  of  Hen.  5,  and  Hen.  6, 
and  the  numerous  acts  of  attainder,  passed  in  those  vof 
Edw.  4,  and  Rich.  3,  arid  the  multiplied  treasons  created 


002  TRIAL     OF    AARON    BURR. 

in  the  reign  of  Hen.  8,  and  his  successors,  whereby  the 
aiders,  counsellors,  consentors,  abettors,  maintainers,  pro- 
curers, comforters,  receivers,  relievers,  and  so  forth,  of 
persons  guilty  of  any  such  treasons,  are  repeatedly  de- 
clared to  be  principal  traitors  also.  These  parliamentary 
declarations  and  statutes  must,  I  conceive,  have  had  a 
strong  influence  over  the  judges,  in  those  days,  when 
parliaments  and  courts  were  equally  devoted  to  the  will 
of  the  ruling  monarch. 

"  I  should  not  have  taken  the  trouble  of  this  scrutiny, 
had  not  the  same  judge  [Judge  Chase],  who  declared 
that  the  English  authorities  were  not  to  be  regarded  as 
precedents  in  our  courts  on  the  same  occasion,  declared 
the  law  to  be,  '  that  in  treason  all  the  participes  criminis 
are  principals ;  that  there  are  to  be  no  accessories  in 
that  crime,  and  that  every  act  which,  in  case  of  felony, 
would  render  a  man  an  accessory,  will  in  the  case  of 
treason  make  him  a  principal.'  If  the  learned  judge 
rejects  the  authority  of  the  English  precedents,  where 
can  the  law  be  found?  And  if  he  relies  upon  those  pre- 
cedents, where  can  the  reason  of  the  law  be  found  ?  " 

In  that  case  it  was  perfectly  clear,  that  the  prisoner 
was  not  present  at  the  only  scene  of  action.  I  can  find 
no  case,  where  a  person  who  was  not  present  at  the 
scene  of  action,  or  where  a  procurer  or  aider  of  treason 
before  the  fact  was  convicted  or  even  brought  to  trial, 
except  the  case  of  Mary  Speke.  In  Tremaine's  Pleas  of 
the  Crown,  p.  3,  I  find  an  indictment  against  her  for 
treason,  in  aiding  the  Duke  of  Monmouth  and  others  in 
levying  war,  with  provisions  ;  neither  before  nor  after,  but 
at  the  time  when  the  treason  was  committed  by  the  prin- 
cipals. She  was  not  an  accessory  in  fact,  but  an  "  aider  " 
in  the  commission  of  the  treason;  it  comes  within  the  defi- 
nition of  an  "  aider  or  procurer, "  and  belongs  to  the  class 
of  accessories  before  the  fact.  But  I  can  not  learn  how 
the  case  was  decided  ;  whether  according  to  common 
sense  or  justice,  or  in  what  manner  determined,  neither 
history,  nor  any  report  of  the  decision  of  the  court  (as 
far  as  I  have  been  able  to  discover)  informs  us.  It  was 
in  the  fourth  year  of  the  reign  of  James  2d,  when  the 
spirit  of  persecution  was  very  high,  and  was  probably 
one  of  the  cases  decided  by  the'  execrable  Jerteries,  on 


ARGUMENT    OF    MR.      WICK  HAM.         603 

the  occasion  of  Monmouth's  rebellion.  Whether  he  car- 
ried this  doctrine  to  the  utmost  length  or  not,  I  can  not 
say;  but  I  presume  the  counsel  for  the  United  States 
would  not  rely  on  it  as  a  precedent  even  if  it  applied. 

After  a  diligent  and  painful  research,  I  have  been  un- 
able to  find  any  other  decisions  that  go  to  this  point, 
with  respect  to  accomplices  in  the  nature  of  accessories 
before  the  fact,  to  treason  in  "  levying  war."  I  can  not 
find,  and  I  am  confident  the  gentlemen  can  not  show  any 
solemn  decision  subjecting  the  procurer,  before  the  fact, 
to  the  pains  and  penalties  of  treason.  The  other  great 
branch  of  treasons,  that  strikes  directly  at  the  existencp 
of  the  government,  that  of  compassing  the  death  of  the 
king,  does  not  admit  of  an  accessory  before  the  fact,  as  dis- 
tinguished from  a  principal.  We  all  know  that  that  crime 
consists  in  the  intention.  The  agreement  to  do  the  act 
constitutes  the  crime  itself.  It  is  impossible  that  there 
can  be  an  aider  or  procurer*  in  this  case,  because  every 
person  concerned  is  party  to  the  agreement,  and  there- 
fore, from  the  nature  of  things,  is  a  principal.  It  will 
not  be  contended  by  the  counsel  on  the  other  side,  that 
an  agreement  to  levy  war  amounts  to  levying  war.  They 
themselves  admit  that  they  who  conspire  to  levy  war  only 
become  traitors  by  relation  when  the  war  is  actually  le- 
vied. With  respect  to  treason  for  compassing  the  death 
of  the  king,  where  the  mere  agreement  to  do  the  act 
does  itself  constitute  the  crime,!  thank  God  that  in  this 
country  we  have  no  subject  to  which  it  applies;  and  our 
constitution  forbids  that  the  intention  alone,  which  is  so 
liable  to  be  misunderstood  and  misrepresented,  should 
in  any  case  be  construed  into  treason. 

In  the  lesser  treasons,  such  as  conterfeiting  the  coin,  I 
have  not  met  with  any  instance  of  as  conviction  of  an  ac- 
complice before  the  fact. 

It  is  admitted  that  there  are  to  be  found  in  Eng- 
land a  number  of  convictions  of  receivers  of  traitors  and 
other  aiders  in  the  nature  of  accessories  after  the  fact ; 
and  I  admit  the  correctness  of  the  inference,  that  if  these 
decisions  \fere  proper  to  be  considered  as  precedents,  the 
principle  would  apply  to  aiders  and  abettors  before  the 
fact.  But  it  becomes  proper  before  they  ought  to  be 
regarded  as  precedents  worthy  of  imitation,  to  inquire 


604  TRIAL     OF    AARON    BURR. 

in  what  times  and  under  what  circumstances,  those  cases 
were  decided,  I  have  not  found  any  of  them  since  the 
revolution  of  1688,  when  the  principles  of  civil  liberty 
and  enlightened  jurisprudence  began  to  be  better  under- 
stood than  before ;  and  most  of  those  previous  to  that 
event,  were  decided  by  Jefferies:  such  as  the  case  of 
Lady  Lisle,  reported  in  4  State  Trials,  p.  106.  John 
Fernley's  case,  ibid.  p.  131,  and  Elizabeth  Gaunt's  case, 
p.  142.  They  were  all  cases  of  receivers  of  traitors  or 
accessories  after  the  fact.  With  respect  to  the  former, 
which  served  as  a  prototype  of  the  others,  I  trust  there 
is  only  one  opinion  among  us.  I  will  only  refer  .the 
court  to  Mr.  Hume's  account  of  this  atrocious  legal  mur- 
der, and  of  the  case  of  E.  Gaunt,  in  his  8th  vol.  of  the 
History  of  England,  p.  233  (octavo  edition);  which  is  as 
follows  : 

"  Of  all  the  executions  during  this  dismal  period,  the 
most  remarkable  were  those  of  Mrs.  Gaunt  and  Lady 
Lisle,  who  had  been  accused  of  harboring  traitors.  Mrs. 
Gaunt  was  an  anabaptist,  noted  for  her  beneficence,  which 
she  extended  to  persons  of  all  professions  and  persuasions. 
One  of  the  rebels,  knowing  her  humane  disposition,  had 
recourse  to  her  in  distress,  and  was  concealed  by  heY. 
Hearing  of  the  proclamation,  which  offered  an  indemnity 
and  rewards  to  such  as  discovered  criminals,  he  betrayed 
his  benefactress,  and  bore  evidence  against  her.  He  re- 
ceived a  pardon  as  a  recompense  for  his  treachery  ;  she 
was  burnt  alive  for  her  charity. 

"  Lady  Lisle  was  widow  of  one  of  the  regicides,  who 
had  enjoyed  great  favor  and  authority  under  Cromwell, 
and  who  having  fled,  after  the  restoration,  to  Switserland, 
was  there  assassinated  by  three  Irish  ruffians,  who  hoped 
to  make  their  fortune  by  this  piece  of  service.  His 
widow  was  now  persecuted  for  harboring  two  rebels, 
the  day  after  the  battle  of  Sedgemoor ;  and  Jefferies 
pushed  on  the  trial  with  an  unrelenting  violence.  In 
vain  did  the  aged  prisoner  plead,  that  these  criminals  had 
been  put  into  no  proclamation  ;  had  been  convicted  by 
no  verdict  ;  nor  could  any  man  be  denominated  a  trai- 
tor, till  the  sentence  of  some  legal  court  was  passed  upon 
him  that  it  appeared  not  by  any  proof,  that  she  was  so 
much  as  acquainted  with  the  guilt  of  the  persons,  or  had 


ARGUMENT    OF    MR.     WICKHAM.         605 

heard  of  their  joining  the  rebellion  of  Monmouth  :  that 
though  she  might  be  obnoxious  on  account  of  her  family, 
it  was  well  known  that  her  heart  was  ever  loyal,  and  that 
no  person  in  England  had  shed  more  tears  for  that  tragi- 
cal event,  it  which  her  husband  had  unfortunately  borne 
too  great  a  share  :  and  that  the  same  principles  which 
she  herself  had  ever  embraced,  she  had  carefully  instilled 
into  her  son,  and  had  at  that  very  time  sent  him  to  fight 
against  those  rebels  whom  she  was  now  accused  of  har- 
boring. Though  these  arguments  did  not  move  Jeffer- 
ies,  they  had  influence  on  the  jury.  Twice  they  seemed 
inclined  to  bring  in  a  favorable  verdict.  They  were 
as  often  sent  back  with  manaces  and  reproaches,  and  at 
last  were  constrained  to  give  sentence  against  the  pri- 
soner. Notwithstanding  all  applications  for  pardon,  the 
cruel  sentence  was  executed.  The  king  said  that  he  had 
given  Jefferies  a  promise  not  to  pardon  her.  An  excuse 
which  could  serve  only  to  aggravate  the  blame  against 
himself." 

These  cases  and  decisions  (Throgmorton's  and  Lady 
Lisle's),  I  admit,  are  precedents,  if  they  choose  to  rely 
on  them,  and  they  can  find  no  other. 

Since  the  revolution  of  1688,  though  the  doctrine  has 
been  admitted  by  writers  to  be  true,  yet  all  the  decisions 
of  the  court,  that  I  can  find,  which  bear  upon  the  subject, 
lead  to  a  directly  opposite  conclusion.  The  most  numer- 
ous class  of  cases  relate  to  convictions  which  took  place 
before  judges  of  a  very  different  stamp,  w"hose  decisions 
are  entitled  to  the  highest  respect.  The  occasion  on 
which  there  was  the  greatest  number  of  prosecutions  for 
treason,  in  levying  war,  was  the  rebellion  in  the  year  1745  : 
and  no  one  can  doubt  the  accuracy  of  the  reports  of  the 
decisions  at  that  period,  or  the  ability  of  the  judges  who 
presided,  and  the  counsel  who  conducted  the  prosecu- 
tions. We  all  know  the  history  of  those  times,  and  what 
cruelties  the  late  Duke  of  Cumberland  committed  after 
the  victory  of  Culloden.  His  name  is  held  in  general 
detestation  by  the  people  of  that  part  of  the  country, 
from  parent  to  child.  Yet  there  was  not  a  single  instance 
of  a  conviction  for  assisting  or  harboring  the  traitors. 
History  mentions  the  wonderful  escape  of  the  pretender, 
and  his  concealment  and  protection,  by  the  unexampled 


606  TRIAL   OF  AARON  BURR. 

courage  and  fidelity  of  Miss  Macdonald.  Yet  no  attempt 
was  made  to  convict  her  of  treason,  or  others  who  aided 
him,  or  even  to  prosecute  them.  Though  he  was  a  long 
time  concealed,  and  in  eluding  the  vigilance  of  his  pur- 
suers was  favored  by  many,  yet  it  is  remarkable  that  no 
person  who  assisted  him  in  his  distress,  was  attempted 
to  be  punished.  But  let  us  not  draw  any  inference  from 
the  silence  and  inactivity  of  the  officers  of  the  crown, 
but  advert  to  what  was  actually  done. 

The  fact  of  the  pretender's  raising  an  army  in  Scot- 
land,  with  a  view  of  seating  himself  on  the  throne  of 
Great  Britain  ;  his  giving  battle  to  the  king's  troops, 
defeating  them  several  times,  and  marching  into  the 
heart  of  England,  could  have  been  proved  by  thousands 
of  witnesses.  If  the  .doctrine,  that  persons  absent  and 
not  in  arms  might  be  charged  with  the  overt  acts  of 
others  with  whom  they  were  connected,  were  admitted, 
nothing  would  have  been  more  simple  and  easy,  than 
the  mode  of  conducting  the  prosecutions  on  this  occa- 
sion. The  prosecutors  would  have  had  nothing  to  do, 
but  to  charge  an  overt  act  in  some  county  through  which 
the  pretender's  army  had  passed,  no  matter  which,  to 
prove  the  fact  of  his  having  done  so  (a  fact  as  notorious 
as  that  the  places  themselves  were  in  existence),  and  then 
to  prove  that  ihe  person  charged  was  connected  with 
the  rebellion,  and  assented  to  it ;  whether  he  had  ever 
been  in  the  county  where  the  act  was  charged  upon  him, 
or  had  even  raised  a  finger  in  opposition  to  the  govern- 
ment or  not,  was  a  matter  of  no  importance.  His  con- 
viction followed  as  a  necessary  consequence. 

But  did  the  courts  and  prosecutors  proceed  in  this 
manner?  A  reference  to  their  decisions  will  prove,  that 
the  courts  proceeded  on  the  contrary  doctrine ;  and  that 
the  judges,  as  well  as  the  counsel  for  the  prosecutions, 
thought  that  they  could  only  be  sustained  by  bringing 
the  overt  act  home  to  the  person  himself,  by  establishing 
the  fact  that  the  accused  was  present,  and  personally 
committed  the  overt  acts  charged  in  the  indictment. 

Justice  Foster,  in  his  Crown  Law,  pp.  3  to  6,  gives  the 
form  of  the  indicment  and  says  that  "  it  was  used 
against  all  the  rebels  who  were  tried  in  Surrey  (except 
one,  for  reasons  explained);  that  the  overt  acts  were  laid 


ARGUMENT    OF    MR.      WICK  HAM.        607 

in  different  counties  of  England  or  Scotland,  as  the  cases 
respectively  required  ;  that  the  fact  of  taking  and  possess- 
ing the  city  and  castle  of  Carlile,  was  not  charged  on 
those  who  were  not  concerned  in  that  part  of  the  rebel- 
lion." 

According  to  the  doctrine  of  the  gentlemen  on  the 
other  side,  what  necessity  was  there  of  varying  the  overt 
acts  from  one  county  to  another?  Why  charge  them  in 
different  counties,  if  any  one  might  be  charged  with  the 
acts  of  others  wherever  committed  ?  _  For  what  purpose 
was  the  act  of  taking  Carlisle  not  charged  on  those  who 
were  not  concerned  in  that  part  of  the  rebellion?  If 
this  doctrine  be  correct,  it  was  no  matter  whether  they 
were  present  or  absent  ;  if  they  were  concerned,  they 
were  all  in  the  eye  of  the  law,  present  on  the  spot.  Was 
not  Judge  Foster  talking  nonsense,  when  he  stated  dif- 
ferent modes  of  charging  the  overt  acts,  if  their  doctrine 
be  correct?  One  mode  would  have  done  for  all,  whether 
they  were  present  or  absent.  But  this  is  not  a  loose  ex- 
pression put  down  incautiously  by  Judge  Foster,  but  an 
opinion  on  which  the  court  acted. 

In  Deacon's  case,  Foster's  Crown  Law,  pp.  9,  10,  it  was 
insisted  for  the  prisoner,  that  as  the  overt  acts  were  laid 
in  Cumberland,  evidence  of  an  overt  act  in  Manchester 
should  not  be  given  ;  but  the  court  determined  "  that 
it  was  indeed  necessary  that  some  overt  act  laid  be 
proved  on  the  prisoner  in  Cumberland  ;  but  that  being 
done,  acts  of  treason,  tending  to  prove  the  overt  acts  laid, 
though  done  elsewhere,  might  be  given  in  evidence." 
It  is  evident  from  the  expressions,  "  proved  on  the  pris- 
oner," and  "that  being  done,"  as  well  as  the  whole  con- 
text, that  the  court  required  proof  of  an  act  in  Cumber- 
land, and  that  the  prisoner  himself  had  in  person  com- 
mitted the  overt  act  charged,  and  that  no  evidence  short 
of  this  was  sufficient. 

If  gentlemen  doubt  the  propriety  of  this  construction, 
there  is  authority  in  the  same  book,  page  22,  which  con- 
firms it.  In  Sir  John  Wedderbourne's  case,  the  overt 
acts  were  laid  at  Aberdeen  ;  it  was  proved  by  two  wit- 
nesses that  he  was  with  the  rebels  at  Aberdeen  ;  and 
then  proof  was  offered  of  an  overt  act  elsewhere,  which 
was  objected  to  by  his  counsel;  but  "  this  objection  was 


6o8  TRIAL     OF    AARON    BURR. 

overruled  upon   the  reasons  before  given  in  the  case  of 
Deacon." 

What  necessity  was  there  to  prove  that  he  was  with 
the  rebels  at  Aberdeen  ?  If  their  doctrine  be  law,  proof 
that  the  rebels  had  been  there  was  sufficient ;  and  that 
fact  being  as  well  known  as  that  there  had  been  a  rebel- 
lion, no  evidence  of  any  overt  act  of  any  sort,  at  any- 
place, done  by  the  accused,  was  wanting;  proof  of  any 
act,  however  secret,  and  however  remote  from  the  scene 
of  action,  was  all  that  was  requisite. 

In  the  trial  of  Lord  Balmerino,  reported  in  gth  State 
Trials,  p.  605,  one  of  the  overt  acts  charged  was  his  march- 
ing into  and  taking  possession  of  the  city  of  Carlisle,  and 
holding  it  for  the  pretender.  He  denied  that  in  point  ot 
fact  he  was  present  at  the  taking  of  the  city.  This  ob- 
jection was  met  by  the  counsel  for  the  crown,  among 
whom  was  the  late  Lord  Mansfield,  by  a  reference  to  the 
testimony,  proving  that  he  marched  in  with  the  rebels 
'after  the  surrender,  and  to  the  other  charges  in  the  indict- 
ment which  had  been  clearly  proved  ;  so  that  it  was  un- 
important whether  this  was  established  or  not.  Neither 
Lord  Mansfield,  Sir  John  Strange,  nor  any  of  the  other 
great  lawyers  who  were  counsel  for  the  crown,  thought 
of  the  objection  now  urged  by  the  gentleman  on  the 
other  side.  They  exerted  themselves  merely  to  show 
that  the  day  was  immaterial;  and  that  the  subsequent 
entry  of  the  prisoner  into  the  city,  and  remaining  in  it 
with  the  rebels, was  sufficient  for  his  conviction,  exclusive 
of  the  other  acts  proved.  Had  they  understood  the  law  to 
be  as  the  counsel  for  this  prosecution  understand  it,  they 
would  have  at  once  replied,  "  Whether  the  prisoner 
were  personally  present  at  Carlisle  or  not  is  of  no 
consequence  ;  others  with  whom  he  was  connected 
were  there,  and  did  the  act  charged  on  him,  and  as  all  are 
principals  in  treason,  their  acts  are  his."  But  they  urged 
no  such  doctrine  ;  it  was  reserved  for  the  ingenuity  of 
future  ages  to  discover  it.  It  is  evident  that  they  thought 
it  necessary  to  prove  that  he  was  present  and  an  actor  in 
the  scene  where  the  overt  act  was  laid ;  or  that  this 
charge  in  the  indictment  must  be  abandoned.  This  has 
uniformly  been  the  rule,  nor  can  any  instance  be  shown 
where  a  party  who  was  not  present  himself  where  the 


ARGUMENT    OF    MR.     WICKHAM.        609 

act  was  done,  but  a  mere  procurer,  has  been  subjected  to 
the  punishment  of  treason. 

In  opposition  to  these  decisions  (given  at  a  time  when 
there  was  certainly  no  partiality  in  favor  of  the  accused, 
but  as  much  learning  and  virtue  on  the  bench,  and  as 
great  a  portion  of  talents  at  the  bar  as  in  any  period  of 
English  history,  and  which  are  not  opposed  by  a  single 
case  since  the  revolution,  when  the  independence  of  the 
judiciary,  and  the  principles  of  a  free  government  were 
first  established  and  confirmed)  the  counsel  for  the  prose- 
cution may  quote  Lord  Coke,  Stanford,  and  other  emi- 
nent law  writers,  since  the  age  of  Henry  VIII.  If  this 
be  so  it  proves  nothing,  except  that  the  theory  was 
one  way,  and  the  practice  the  other ;  and  as  this  is  a 
practical  question,  we  ought  to  abide  by  the  precedents 
established  by  the  courts  on  this  law  as  they  occurred, 
and  not  the  dicta  of  men,  however  eminent,  who  appear 
to  have  written  without  due  consideration,  and  to  have 
done  little  more  than  to  copy  verbatim  the  speculative 
opinions  of  their  predecessors. 

For  the  history  of  this  opinion,  I  beg  leave  to  refer  to 
Judge  Tucker's  very  able  treatise  on  the  subject.  He 
has  traced  it  to  its  source,  and  shown  how  error  is  begot- 
ten by  error.  See  Tucker's  Blackstone,  4th  vol.  appen- 
dix, note  b.,  pp.  40  to  47.  After  having  shown  the  impor- 
tant effect  of  the  word  "  only,"  in  the  constitution,  "  as 
the  strongest  term  of  limitation  and  restriction  in  our 
language,  that  its  obvious  meaning  is,  that  "  treason 
shall  consist  in  these  two  cases  "  (levying  war  and  adher- 
ing to  their  enemies,  &c.),  and  no  other  cases  whatever, 
he  proceeds : 

"  And  here  it  may  not  be  improper  to  repeat  the  re- 
mark, that  this  definition  creates  as  well  as  limits  an 
offense  which  had  no  previous  existence  ;  whereas  the 
statute  25  Edward  3  did  not  create,  but  only  defined  an 
offense  already  k*how  to  the  common  law.  '  That  statute,' 
said  Stanford  (afterwards  chief  justice  of  the  common 
pleas),  '  is  but  a  declaration  of  certain  treasons,  which 
were  treasons  before  at  the  common  law.'  Will  any  man 
presume  to  advance  that  there  is  any  treason  against  the 
United  States  by  the  common  law  ?  that  a  limited  federal 
republic  of  yesterday  hath  already  appropriated  to  itself 
i.— 39 


6  io  TRIAL     OF    AARON    BURR. 

all  the  foul  corruptions  of  despotism,  collected  from  time 
immemorial.  To  infer  that  the  courts  of  the  United 
States  are  left  to  range  at  large  in  the  boundless  field  of 
construction  in  search  of  other  cases  of  treason  against 
the  United  States,  seems  to  my  apprehension  to  be  a 
doctrine  equally  unfounded,  awful,  and  dangerous. 

"  If,  then,  we  are  not  at  liberty  to  reject  this  important 
word  '  only,'  we  must  assign  to  it  some  determinate  sig- 
nification, and  if  that  signification  be  that  which  I  have 
ascribed  to  it,  to  wit,  '  these  cases  and  no  other  what- 
soever,' its  necessary  operation  and  effect  must  be  to  cut 
up  all  constructive  treasons,  root  and  branch.  If  a  sin- 
gle scion  be  left,  it  will  be  the  parent  of  ten  thousand 
others,  shedding  like  the  '  Buonas  Upas'  their  baneful  in- 
fluence far  and  wide,  poisoning  and  desolating  the  whole 
region  where  they  are  permitted  to  take  root.  Faction 
and  factious  men  are  not  confined  to  any  one  party  in  a  re- 
public, and  when  such  men  have  thecommand  of  the  purse, 
the  sword  and  the  scales  of  justice,  the  lives  of  their  oppo- 
nents will  not  weigh  a  feather  in  competition  with  their 
own  advancement,  or  that  of  their  party.  This,  the  framers 
of  the  constitution  must  have  considered,  and  therefore 
endeavored  by  the  strongest  terms,  and  the  strictest  limi- 
tation, to  restrain  within  the  narrowest  limits.  And  this 
should  serve  as  the  polar  star  of  construction  to  judges 
and  all  others  who  may  be  called  upon  to  administer 
the  government. 

"  Thus  having  sought,  and,  I  trust  discovered  not  only 
the  literal  sense  and  meaning  of  the  word  '  only,'  but  also 
its  proper  interpretation,  according  to  the  true  spirit  of 
our  federal  constitution,  I  shall  now  inquire  into  its  effect 
and  operation  in  certain  cases,  which  might  have  been 
supposed  to  be  treason  Itad  it  been  omitted. 

"In  England  it  is  now  generally  admitted,  that  '  in 
treason,  all  the  participes  criminis  are  principals,'  there 
being,  as  it  is  said,  no  accessories  to  that  crime  ;  and  that 
every  act  which,  in  case  of  felony,  would  render  a  man 
an  accessory,  will  in  case  of  treason  make  him  a  principal.* 

*  The  ancient  law  of  England  was,  that  they  who  were  present  and  abbeting 
others  to  do  the  act,  were  accessories  and  not  principals.  Per  Bromley,  C. 
J.,  Plowden,  97,  98.  .See  Plowden's  note  thereon,  ib.  99,  100,  whereby  it 
seems  the  law  was  changed  tempore  Henry  4,  I  Hale,  437. 


ARGUMENT  OF  MR.    WICK  HAM.          611 

"  This  doctrine  was  laid  down  by  Judge  Chase  in  his 
charge  to  the  jury,  on  the  trial  of  Fries,*  but  as  I  con- 
ceive it  to  have  been  extrajudicial,  for  reasons  already 
mentioned,  I  shall  take  the  liberty  now  to  inquire 
whether  it  be  not  also  questionable.  But  before  I  do 
this  I  shall  endeavor  to  trace  this  copious  branch  of  con- 
structive treason  to  its  fountain  head,  and  show  how 
small  a  portion  of  that  fatal  torrent  flows  from  an  uncor- 
rupted  spring.  In  doing  this,  I  shall  begin  with  the 
latest  authorities  and  conclude  with  the  most  ancient. 
This  doctrine  is  advanced  by  Judge  Blackstone  (4th  Com. 
35,  36),  for  which  he  cites  3  Institutes,  138.  I  Hale's  P. 
C.  613,  and  Foster,  342.  The  latter  cites  3d  Institutes, 
9,f  and  138,  and  I  Hale,  235,  237,  328,  376.  Hale  him- 
self cites  3  Inst.  16,  and  138.  Stanford's  P.  C.  32,  and 
the  year  book,  I  Hen.  6,  5,  of  which  last  case  I  shall  make 
particular  mention  by  and  by. 

"Sir  Edward  Coke,  3  Inst.  16,  and  138,  cites  Stanford, 
P.  C.  3,  and  the  Year  Books,  19  H.  6,  47,  and  3  H.  7,  10. 

"  Stanford,  P.  C.,  3  and  32,  40  and  44,  cites  the  same 
identical  cases  from  the  Year  Books,  that  Sir  Matthew 
Hale  and  Sir  Edward  Coke  had  cited  before.  From  these 
three  original  cases,  I  Hen.  6,  5  ;  19  Hen.  6,  47,  and  3 
Hen.  7,  10,  we  must  consequently  derive  the  doctrine  in 
question. 

"  The  case  of  I  Hen.  6,  5  (A.  D.  1422)  is  thus  mentioned 
by  Stanford,  p.  32.  A  man  was  outlawed  of  felony,  was 
imprisoned  in  the  king's  bench  and  indicted  and  attainted 
of  breaking  prison,  and  releasing  certain  persons  confined 
for  treason,  and  this  was  adjudged  petit  treason. 

"  Upon  what  principle  this  case  could  be  judged  petit 
treason,  it  might  puzzle  any  man  at  this  day  to  conjec- 
ture, and  creates  a  presumption  that  the  case  is  not  very 
accurately  reported.  But  there  is  another  principle  of 
the  common  law  on  this  particular  subject  of  breach  ot 
prison,  which  will  probably  lead  us  to  understand  it.  It 
is  this:  If  there  be  felons  in  prison,  and  a  man  knowing 
of  it,  breaks  the  prison  and  lets  out  the  prisoners,  though 
he  knew  not  that  there  were  felons  there,  it  is  felony  ; 
and  if  traitors  were  there,  it  is  treason.  Now  if  the  per- 

*  Fries's  Trial,  198. 
f  This  is  a  mistaken  reference  in  Foster  ;  it  should  be  16. 


6'i2  TRIAL     OF    AARON    BURR. 

sons  released  in  the  case  here  referred  to,  were  imprisoned 
for  petit  treason,  instead  of  high  treason,  this  judgment 
would  be  regular;  but  by  no  rule  of  law  could  they  be 
deemed  guilty  of  petit  treason  in  any  other  case.  And, 
if  this  were  the  case,  it  would  prove  that  there  was  no 
distinction  in  principle  between  treason  and  felony  ;  in- 
asmuch as  the  releasing  a  felon  from  jail  is  felony,  in  the 
same  manner  as  releasing  a  traitor  from  jail  is  treason. 
And  it  appears  from  Stanford,  that  a  stranger  rescuing 
one  indicted  for  felony,  was  indicted  and  tried,  and  found 
guilty  for  that  offense  before  the  principal  felon  was  tried. 
But  Sir  Michael  Foster  gives  us  a  further  clue  to  the  un- 
derstanding of  this  case  ;  for  in  speaking  on  this  subject, 
he  observes  with  great  reason  that  the  forcing  of  prison 
doors  may  be  considered  as  overt  acts  of  '  levying  war  ;' 
the  species  of  treason  for  which  Benstead,  of  whom  he 
was  speaking,  was  indicted.  And  this  might  have  been 
the  case  in  this  instance.  These  cases  confirm  the  conclu- 
sion, that  the  law  made  no  distinction  at  that  time  be- 
tween treason  and  felony.  A  statute  was  made  in  the 
year  after  this  case  was  adjudged,  2  Hen.  6,  c.  ult.  cited 
by  Stanford,  whereby  it  was  declared  to  be  treason  in 
any  person  imprisoned  to  break  prison.  All  which  cir- 
cumstances united,  create  a  strong  presumption  that  this 
case  is  not  correctly  reported,  nor  the  grounds  of  the 
judgment  perfectly  understood. 

"  The  second  case  occurred  thirteen  years  after,  in  the 
year  1441,  and  is  thus  mentioned  in  Brooke.  A  man  was 
indicted  for  forging  false  money,  and  another  at  the  same 
time  ;  one  confesses  and  approves,  and  has  a  coroner  as- 
signed him;  the  other  pleads  not  guilty,  and  it  was  found 
that  he  was  consenting  and  aiding  in  forging  the  false 
money,  and  so  guilty.  Stanford  mentions  the  case  in 
the  like  manner,  and  it  is  evident  from  this  state  of  it, 
that  the  defendant  was  present,  aiding  and  assisting,  and 
so  would  have  been  a  principal  in  felony  as  well  as  in 
treason,  which  is  confirmed  by  Stanford,  who  proceeds 
thus  :  '  It  is  the  same  case  in  rape,  where  one  does  the 
act,  and  another  assists  him  to  commit  the  rape;  he  is 
by  this  a  ravisher.'  The  law  is  the  same  in  felony  as  well 
as  in  treason,  that  all  present,  aiding  and  assisting  at  the 
fact,  are  principles.  Neither  of  these  cases,  therefore,  jus- 


ARGUMENT    OF    MR.     WICKHAM.        613 

tify  the  doctrine  advanced  at  this  day,  that  whatever  act 
will  make  a  man  an  accessory  in  felony,  will  make  him  a 
principal  in  treason. 

"  The  next  case  is  3  Hen.  7,  10,  and  is  relied  on  by  Stan- 
ford and  Sir  Edward  Coke,  as  establishing  the  doctrine 
above  mentioned  ;  it  was  thus:  one  Cokker  was  indicted 
and  attainted  of  making  false  money,  and  afterwards  one  J. 
B.  was  indicted  for  traitorously  and  knowingly  entertain- 
ing and  comforting  him  ;  and  was  found  guilty,  and  the 
question  was,  whether  he  would  be  deemed  an  accessory 
to  Cokker?  Brian,  justice,  said  he  might  be  accessory,  for 
such  counterfeiting  was  felony  before  the  statute,  and  is  not 
cut  off  by  it;  and  in  every  treason,  felony  is  implied,  &c. 
'  et  tamen  Hussey  Cap  :  Inst  :  dixit  quod  in  hoc  quod  fac- 
tum  est  proditio,  non  potest  esse  accessarius  felonice  et 
proditorie  non  potest  esse  accessarius,'  for  which  doctrine 
he  refers  to  the  preceding  case  of  19  Hen.  6,  47.  Here, 
then,  we  have  this  opinion  of  two  judges  in  opposition 
to  each  other;  and  we  find  the  latter  supporting  his 
opinon  by  a  reference  to  the  very  case,  which,  we  have 
already  shown,  does  not  authorize  it. 

"These  are  all  the  ancient  authorities  referred  to  either 
by  Stanford,  Sir  Edward  Coke,  Sir  Matthew  Hale,  or  any 
writer  on  the  subject ;  and  it  requires  very  little  discern- 
ment, I  apprehend,  to  discover  that  the  two  former  do 
not  warrant  the  latter,  and  that  the  latter  is  the  Dictum  of 
a  single  judge.  And  Brooke  cites  it  in  that  manner: 
'  Nota,  P.  Hussey  C.  I.  que  accessory  ne  poet  este  a 
treason  ;  le  recetment  de  traitor,  ne  poet  este  tantum 
felony,  mes  est  treason.'  Had  this  been  the  established 
doctrine  of  the  common  law,  we  might  have  expected 
that  the  laborious  and  indefatigable  Sir  Edward^Coke 
(under  whose  auspices  it  was  brought  to  maturity,  as 
we  shall  see  hereafter)  would  have  referred  us  to  the  Mir- 
ror, Bracton,  Britton,  Fleta,  or  Glanville,  in  some  of 
which  it  would  most  certainly  have  been  found." 

In  page  47  he  adds,  "  Both  common  law  and  common 
sense  have  been  able  to  perceive,  and  draw  a  distinction 
between  the  actual  perpetration  of  a  crime,  and  the  bare 
advising,  or  even  procuring  the  perpetration  of  it,  without 
being  present  when  it  is  perpetrated  ;  they  have  also  been 
t.ble  to  distinguish  between  the  perpetration  of  a  crime, 


6 14  TRIAL     OF    AARON    BURR. 

and  the  receiving  and  comforting  one  who  has  been  him- 
self the  perpetrator,  knowing  him  to  be  such  ;  it  was 
reserved  for  the  astute  reason  of  judges  appointed  by  the 
crown,  to  discover  that  there  was  no  distinction  between 
these  cases,  when  the  sacred  majesty  of  their  master's 
head  was  in  danger,  or  supposed  to  be  so;  it  was  reserved 
for  them  to  declare,  that  to  give  a  meal's  victuals  to  one 
guilty  of  treason,  was  a  crime  of  the  same  malignity  as 
levying  war  against  the  throne,  or  as  aiming  a  dagger  at 
the  heart  of  the  monarch." 

An  additional  reason  may  be  drawn  from  the  law  of  trea- 
son in  compassing  the  king's  death.  There,  as  the  crime 
consists  in  the  attention,  all  are  principals,  and  the  aider  or 
procurer  in  the  first  instance  is  guilty ;  and  this  rule  has 
been  transplanted  or  extended  by  theorists  to  the  other 
great  branch  of  treason,  "  leving  war  "  against  the  govern- 
ment. Lord  Coke  was  very  fond  of  quaint  expressions  ;  of 
these  one  was,  that  "  in  the  highest  and  lowest  offenses  all 
are  principals."  That  in  them  there  are  no  accessories. 
As  a  general  principle,  can  this  be  correct?  Apply  it  to 
the  lowest  offenses  ;  apply  it  to  the  case  of  an  assault  and 
battery.  Suppose  a  man,  having  an  enmity  against 
another,  is  determined  to  gratify  his  vengeance  against 
him  ;  he  does  not  act  himself,  but  employs  a  bravo  to 
assassinate  or  severely  beat  him.  A.  thus  advises  and 
procures  .B.  to  beat  C.,  but  is  not  present  at  the  beating  : 
will  it  be  contended  that  an  action  or  an  indictment  will 
lie  against  A.,  who  was  absent,  for  this  assult  and  battery? 
The  authority  of  Hawkins  in  his  Pleas  of  the  Crown,  book 
2d,  ch.  29,  §  4,  is  decisive  on  this  point :  "  It  seems  agreed 
that  whosoever  agrees  to  a  trespass  on  lands  or  goods, 
done  to  his  use,  thereby  becomes  a  principal  in  it.  But 
that  no  one  can  become  a  principal  in  a  trespass  on  the 
person  of  a  man  by  any  such  agreement."  Also  it  seems 
agreed  "  that  no  one  shall  be  adjudged  a  principal  in  any 
common  trespass,  or  inferior  crime  of  the  like  nature,  for 
barely  receiving,  comforting,  and  concealing  the  offender, 
though  he  knew  him  to  have  been  guilty,  and  that  there 
is  a  warrant  out  against  him,  which  by  reason  of  such 
concealment  can  not  be  executed." 

Could  it  be  supposed  that  gentlemen  would  have  de- 
nied this  to  be  law  ?  It  never  can  be  admitted  that  the 


ARGUMENT    OF    MR.     WICK  HAM.        6rs 

procurer  or  adviser  of  a  trespass  is  punishable  as  a  prin- 
cipal. No  man  can  be  a  trespasser  against  the  person  of 
another,  who  is  not  present  and  acting  or  assenting  to  it. 

Mr.  Hay  here  insisted  that  if  a  man  procure  another 
to  beat  a  third,  the  procurer  is  a  trespasser,  and  will  be 
liable  to  an  action  or  indictment. 

Mr.  Wickham. — I  insist  that  the  law  is  otherwise  ;  and 
I  refer  to  the  authority  I  have  already  produced.  They  can 
adduce  none  to  oppose  it ;  and  were  it  necessary  it  could 
be  confirmed  and  fortified  by  others.  To  be  liable  for 
the  trespass  on  the  person,  he  must  be  present.  If  a  man 
in  Frederick  county  advise  another  to  beat  a  man  in 
Henrico,  and  he  does  beat  him  accordingly  in  Henrico, 
where  the  adviser  never  was,  an  action  or  a  public 
prosecution  will  certainly  never  lie  against  the  adviser. 

But  admitting  that  both  the  theory  and  practice  in  the 
English  courts  concur  in  establishing  the  doctrine  which 
the  gentlemen  contend  for,  and  that  any  man,  connected 
in  any  manner  with  the  traitors,  is  himself  a  traitor,  yet  I 
contend  that  it  can  not  be  law  in  this  country,  where  the 
constitution  of  the  United  States  has  pointed  out  and 
established  a  different  rule.  The  statute  in  England,  on 
which  all  the  indictments  are  founded,  is  well  known  to 
be  that  of  25  Edw.  3.  It  does  not  create  any  new  treasons 
of  which  the  punishments  are  pointed  out,  or  enlarge  the 
doctrine  of  treasons  ;  but  on  the  contrary  was  intended 
to  narrow  the  legal  definition  of  this  crime,  which  was 
punishable  at  common  law. 

In  construing  the  statute,  therefore,  the  judges  con- 
sidered it  as  made  in  affirmance  of  the  common  law, 
except  where  the  restraining  clauses  were  permitted  to 
operate ;  it  was  construed  according  to  the  course  of  the 
common  law,  and  the  doctrine  that  all  are  principals  in 
treason,  if  it  rests  on  any  foundation,  can  have  no  other 
than  the  common  law  ;  I  Hale  P.  C.  76-87,  proves  that 
this  statute,  25  Edw.  3,  was  made  to  confine  and  limit  the 
crime  of  treason,  "  which  was  before  that  statute  arbi- 
trary and  uncertain."  In  page  85  he  calls  it  "  the  great 
boundary  of  treason  "  ;  and  shows  that  its  object  was  to 
prevent  constructive  treasons.  This  salutary  statute  is 
also  spoken  of  by  Hume,  as  a  very  popular  act  passed  to 
narrow,  define,  and  limit  treasons  known  at  common  law. 


616  TRIAL     OF    AARON    BURR. 

Under  the  federal  constitution,  I  persume,  it  will 
hardly  be  contended  by  the  counsel  for  the  prosecution, 
that  we  have  any  common  law,  belonging  to  the  United 
States  at  large.  I  always  did  believe  and  still  believe, 
that  we  have  no  common  law  for  the  United  States,  espe- 
cially in  criminal  cases.  The  only  ground  on  which  the 
common  law  becomes  a  rule  of  decision  in  the  federal  courts, 
is  under  that  clause  in  the  judiciary  law  (i  Laws  of  United 
States,  ch.  20,  §  34,  p.  74),  which  makes  the  laws  of  the  several 
states  a  rule  of  decision,  as  far  as  they  respectively  apply. 
The  common  law  is  part  of  the  law  of  Virginia,  and  the 
act  of  congress  has  adopted  the  laws  of  Virginia  as  the 
rule  of  decision  in  cases  where  they  apply. 

With  respect  to  crimes  and  offenses  against  the  United 
States,  which  must  be  punished  in  an  uniform  manner, 
throughout  the  Union,  it  seems  clear,  for  the  reason  al- 
ready given,  that  none  such  can  exist  at  common  law,  as 
the  United  States  have  in  that  character  no  common  law, 
and  that  they  must  be  created  by  statute.  Unquestionably 
the  gentlemen  will  not  deny  this  uniformity  ;  they  will  not 
contend  that  what  is  treason  in  Maryland  is  not  treason  in 
Virginia,  or  vice  versa.  If  it  exist  at  all,  it  must  be  uni- 
form, embracing  the  whole  of  the  United  States.  I  do 
not  know  whether  gentlemen  will  admit,  but  I  presume 
they  will  not  deny,  that  treason  against  the  United  States 
is  only  punishable  by  virtue  of  the  act  of  congress,  under 
the  constitution  of  the  United  States,  and  that  no  in- 
dictment would  lie  against  any  person  for  such  an  of- 
fense till  it  passed;  and  the  crime  being  punishable  by 
general  statutory  regulation,  extending  throughout  the 
United  States,  the  mode  in  which  that  regulation  operates 
must  be  uniform.  The  act  of  congress  does  not  admit  of 
different  constructions  in  different  states.  To  illustrate 
this  position  by  a  familiar  case,  I  will  mention  the  late 
sedition  law.  One  party  thought  it  unconstitutional ; 
another  party  thought  it  consistent  with  the  constitution, 
and  that  a  person  guilty  of  the  offense  could  be  pun- 
ished in  each  state,  by  the  common  law  in  such  state. 
It  was  a  question  of  jurisdiction,  but  all  parties  agreed, 
that  if  the  constitution  did  authorize  (or  did  not  pro- 
hibit) congress  to  legislate  on  the  subject,  no  person 
could  be  punished  for  such  an  offense,  till  they  passed  an 


ARGUMENT    OF    MR.     WICK  HAM.        617 

act  creating  the  offense ;  because  there  was  no  general 
common  law  pervading  the  United  States.  The  party 
who  thought  it  constitutional,  were  of  opinion  that  the 
offense  was  punishable  as  soon  as  the  law  passed.  The 
other  party  of  course  thought  otherwise. 

That  the  United  States  have  no  common  law,  and  that 
offenses  against  them  must  be  created  and  prohibited  by 
statute,  is  the  opinion  of  the  learned  Judge  Chase, 
and  I  believe  that  this  opinion  received  the  unqualified 
approbation  of  those  who  thought  most  unfavora- 
bly of  his  opinions  and  judicial  conduct  on  other  occa- 
sions. 

Now,  as  there  is  no  general  common  law  of  the  United 
States,  the  act  of  congress  must  be  constructed  without 
any  reference  to  any  common  law,  and  treason  is  to  be 
considered  as  a  newly  created  offense,  against  a  newly 
created  government. 

In  England  treason  and  felony  are  classes  or  descrip- 
tions of  offenses  at  common  law  ;  they  are  generic  terms ; 
aiders  and  abettors  are  punished  in  the  former,  if  you  will, 
as  principals,  in  the  latter  as  accessories. 

It  is  a  rule  of  law  there,  that,  when  a  statute  is  made 
in  affirmance  of  the  common  law,  or  to  supply  the  defects 
of  the  common  law,  it  should  be  expounded  according  to 
the  common  law.  See  10  State  Trials,  436 ;  M'Daniel's 
case,  Hob.  Rep.  p.  98. 

It  has  therefore  been  held,  that  if  an  act,  criminal  at 
common  law,  be  declared  by  a  statute  to  be  felony  or 
treason,  it  being  made  to  supply  the  defects  of  the  com- 
mon law,  its  prototype,  the  same  consequences  follow  as 
if  it  were  felony  or  treason  by  common  law.  It  becomes 
therefore  unnecessary  to  mention  accessories,  or  even  to 
define  the  punishment  ;  and  accordingly  there  are  acts 
of  parliament  which  go  no  further  than  to  declare,  that 
the  offenses  mentioned  in  them  shall  be  felony,  without 
even  mentioning  the  punishment. 

This  rule  may  be  questioned  on  this  ground,  that  penal 
statutes  should  be  construed  strictly  ;  but  it  is  generally 
considered  as  law  in  England,  that  when  a  felony  is  created 
by  statute,  accessories  to  it,  though  not  named  in  the 
statute,  are  punishable  ;  and  that  all  legal  consequences 
of  felony  are  attached  to  it  by  the  common  law,  except 


6i8  TRIAL     OF    AARON    BURR. 

in  cases  where  the  special  nature  of  the  act  leads  to  a 
different  conclusion. 

This  rule  is  illustrated  by  the  decisions  on  the  28  Hen. 
8,  chap.  15,  which  makes  piracy,  an  offense  not  punish- 
able at  common  law,  felony. 

It  has  been  solemnly  adjudged,  that  as  this  was  not  a 
common-law  offense,  it  worked  no  corruption  of  blood ; 
that  accessories  to  it  were  not  punishable  ;  in  short,  that 
the  statute  not  being  made  in  imitation  or  supply  of  the 
common  law,  shall  not  be  construed  according  to  the 
course  of  the  common  law.  Hawkins,  in  his  P.  C.  p.  152, 
c.  37,  speaking  of  the  said  act  of  Hen.  8,  making  piracy 
felony,  says  that  "  in  the  exposition  of  the  statute,  it  has 
been  holden,  first,  that  it  does  not  alter  the  nature  of  the 
offense,  so  as  to  make  that  which  was  a  felony  only  by 
the  civil  law,  now  become  a  felony  by  the  common  law  ; 
for  the  offense  must  still  be  alleged  as  done  upon  the  sea, 
and  is  no  way  cognizable  by  the  common  law,  but  only 
by  virtue  of  this  statute  ;  which  by  ordaining  that,  in 
some  respects,  it  shall  have  the  like  trial  and  punishment 
as  are  used  for  felony  at  common  law,  shall  not  be  carried 
so  far  as  to  make  it  also  agree  with  it  in  other  particulars 
which  are  not  mentioned.  And  from  hence  it  follows, 
that  this  offense  remains  as  before,  of  a  special  nature, 
and  that  it  shall  not  be  included  in  a  general  pardon  of 
all  felonies,  which  as  it  was,  before  this  statue,  to  be  ex- 
pounded of  no  felonies  which  are  such  only  by  the  civil 
law,  shall  continue  still  to  have  the  same  construction." 
"  From  the  same  ground  also  it  follows,  that  no  persons 
shall,  in  respect  of  this  statute,  be  construed  to  be,  or 
punished  as  accessories  to  piracies  before  or  after,  a; 
might  have  been,  if  it  had  been  made  a  felony  by  the 
statute,  whereby  all  those  would  incidentally  have  been 
made  accessories  in  the  like  cases-,  in  which  they  would 
have  been  accessories  to  a  felony  at  common  law  ;  and 
from  hence  it  follows  that  accessories  to  piracy,  being 
neither  expressly  named  in  the  statute,  nor  by  construc- 
tion included  in  it,  remain  as  they  were  before,  &c." 

If  therefore  I  be  right  in  my  postulatum,  that  there  is 
no  common  law  of  the  United  States  as  such,  it  follows 
as  a  necessary  consequence,  that  no  persons  can  be  pun- 
ished for  treason,  or  any  other  offense  under  an  act  of 


ARGUMENT    OF    MR.     WICKHAM.        619 

congress,  creating  such  offense,  unless  they  come  within 
the  description, of  the  act ;  that  no  person  can  be  said  to 
have  levied  war  against  the  United  States,  where  it  had 
not  been  levied  by  himself,  but  by  others  ;  and  that  no 
overt  act  of  others  can,  under  the  statute,  be  made  his 
overt  act. 

That  such  was  the  opinion  of  the  framers  of  the  act  of 
congress  (Laws  of  the  United  States,  vol.  I,  page  100), 
for  the  punishment  of  treason  and  other  offenses,  is 
manifest. 

In  sections  10  and  n  of  the  act,  the  punishment  of 
accessories  before  and  after  the  fact  is  defined  ;  that  of 
the  former  is  death,  as  in  the  case  of  a  principal ;  that 
of  the  latter,  fine  and  imprisonment. 

If  the  English  rule,  concerning  accessories  to  felonies, 
were  thought  to  obtain,  to  what  purpose  was  the  loth 
section  enacted  ?  By  the  loth  section,  the  person  who 
advises  the  piracy  is  declared  to  be  an  accessory  and 
made  punishable.  If  it  were  implied,  why  was  this  pro- 
vided? In  section  16  persons  stealing  military  stores, 
their  counsellors,  aiders,  and  abettors  are  mentioned  ;  why 
were  they  expressly  mentioned,  if  they  would  have  been 
necessarily  implied  ?  In  the  loth  section  some  offenses 
are  enumerated,  the  accessories  to  which,  before  the  fact, 
are  expressly  made  punishable  with  death  ;  and  in  the 
nth  section  the  accessories  to  the  same  crimes,  after  the 
fact,  are  in  express  terms  made  punishable  with  impris- 
onment not  exceeding  three  years,  and  with  fine  not  ex- 
ceeding five  hundred  dollars  ;  but  even  in  this  enumera- 
tion, treason  is  not  included.  In  both  sections  the  offenses 
of  murder,  robbery,  or  other  piracy  are  mentioned,  and 
in  the  latter,  felony  is  added.  The  obvious  conclusion 
resulting  from  this  provision  in  these  sections  is,  that 
without  it,  accessories  to  those  offenses  neither  before 
nor  after,  would  have  been  punishable  ;  and  that  as  trea- 
son is  omitted,  accessories  to  that  offense,  whether  before 
or  after  its  commission,  are  not  subject  to  be  punished. 
The  23d  section  affords  an  argument  still  more  directly 
applicable  to  the  present  question.  It  provides  that 
"  whoever  shall  by  force  set  at  liberty  or  rescue  a'ny  per- 
son who  shall  be  found  guilty  of  treason,  murder,  or  any 
other  capital  crime,  or  rescue  any  person  convicted  of 


620  TRI4L     OF    AARON    BURR. 

any  of  the  said  crimes,  going  to  execution,  or  during  ex- 
ecution, every  person  so  offending,  and  being  thereof 
convicted  shall  suffer  death."  "And  if  any  person  shall 
by  force  set  at  liberty  or  rescue  any  person  who  before 
conviction  shall  stand  committed  for  any  of  the  capital 
offenses  aforesaid,  or  if  any  person  or  persons  shall  by 
force  set  at  liberty  or  rescue  any  person  committed  for, 
or  convicted  of,  any  other  offense  against  the  United 
States,  every  person  so  offending,  shall  on  conviction  be 
fined  not  exceeding  five  hundred  dollars  and  imprisoned' 
not  exceeding  one  year."  This  provision  punishes  those 
who  rescue  persons  guilty  of  these  crimes  after  convic- 
tion, with  death,  but  after  commitment  and  before  con- 
viction, with  fine  and  imprisonment  only. 

Now,  according  to  the  gentlemen's  arguments,  all  are 
principals,  as  well  the  mere  receivers  after  as  the  procur- 
ers, or  the  actual  perpetrator  of  the  offense.  There  is  no 
distinction  in  the  books.  The  English  writers  consider 
persons  who  rescue  or  set  at  liberty  traitors,  as  acces- 
sories after  the  fact ;  and  they  are  said  to  be  indictable 
as  traitors.  Why,  then,  was  this  clause  inserted?  A  re- 
ceiver of  a  traitor  is  as  much  a  principal,  according  to 
the  doctrine  laid  down  in  the  English  books,  as  a  person 
aiding  before  the  fact.  Will  the  counsel  for  the  United 
States  contend,  that  such  a  receiver  is  punishable  as  a 
traitor,  while  the  person  who  forces  open  the  doors  of 
the  prison,  and  rescues  the  principal  out  of  the  hands  of 
the  marshal,  shall  be  punishable  only  by  a  fine  of  five 
hundred  dollars,  and  by  one  year's  imprisonment !  If  so, 
a  man  might  rescue  a  traitor  before  conviction,  and  con- 
duct him  to  another  who  receives  him.  The  receiver 
who,  like  Lady  Lisle,  only  entertains  him  but  for  one 
night,  would  be  punishable  with  death,  while  the  rescuer 
and  conductor,  whose  crime  has  the  additional  ingredient 
of  force,  and  that  force  directly  employed  in  opposing  the 
administration  of  justice,  would  be  only  fined  and  impris- 
oned !  It  is  so  absurd  and  contrary  to  the  rules  of  equal 
justice,  that  it  is  impossible  that  the  legislature  could 
have  intended  it.  It  proves  that  congress  were  of  opin- 
ion that  aiders  and  abettors  were  not,  according  to  the 
constitutional  definition  of  treason,  traitors  and  principals. 
If  this  were  an  English  statute  made  with  reference  to 


ARGUMENT    OF    MR.      WICK  HAM.         621 

the  common  law,  I  might  with  propriety  contend,  that  it 
was  the  intention  of  the  legislature,  that  when  counsel- 
lors, aiders,  and  abettors  of  some  offenses  are  named  and 
not  those  of  others,  those  not  mentioned  should  be  con- 
sidered as  not  within  the  meaning  of  the  act,  according 
to  the  maxims  of  law. 

If  this  were  not  their  intention,  why  did  they  mention 
these  terms  in  one  and  not  in  the  other? 

But  it  will  be  said  that  in  high  treason  it  is  unneces- 
sary to  mention  counsellors,  aiders,  &c.,  because  in  trea- 
son there  are  no  accessories  ;  all  are  principals.  Now 
this  argument  is  founded  on  a  total  misapplication  of 
terms.  If  they  can  be  punished  at  all,  it  is  as  principals  ; 
but  in  point  of  fact,  there  may  as  well  be  aiders  and  abet- 
tors in  treason  as  in  other  offenses.  Indeed  there  are 
many  instances  to  be  found  in  the  statute-books  of  these 
very  words  "  aiders,  counsellors,  and  abettors  "  being  used 
and  applied  to  treason.  Th*e  statutory  treasons  between 
the  25  Edw.  3,  and  I  Mary  are  collected  by  Lord  Hale, 
in  the  24th  chapter  of  his  Pleas  of  the  Crown,  p.  258,  and 
among  others  I  would  refer  the  court  to  the  20  Hen.  6, 
ch.  3,  mentioned  by  him  in  page  270;  26  Hen.  8,  ch.  13, 
and  27  Hen.  8,  ch.  2,  in  page  275  ;  35  Hen.  8,  ch.  I,  in  p. 
280  ;  all  of  which,  and  I  doubt  not  many  more,  expressly 
mention  counsellors,  aiders,  and  abettors.  If  it  be  not 
necessary  to  mention  aiders  and  abettors  to  make  them 
punishable,  why  are  they  inserted  in  these  statutes  ?  In 
page  375,  ''  maliciously  to  wish,  will,  or  desire,  by  word  or 
writing,  or  by  craft  to  imagine,  invent,  practice  or  attempt 
any  bodily  harm  to  the  king,  queen,  heir  apparent,  &c., 
to  detain  his  castles,  &c.,"  is  "  enacted  to  be  treason  in 
the  offenders,  their  aiders,  counsellors,  consenters,  and 
abettors."  "  Counterfeiting  the  privy  seal,  privy  signet, 
or  sign  manual  is  made  treason,  and  the  offenders,  their 
counsellors,  aiders,  and  abettors,  to  suffer  as  in  case  of 
treason,  &c."  The  statutes,  which  are  made  with  a  refer- 
ence to  this  law,  mention  aiders,  counsellors,  and  abet- 
tors in  some  clauses,  and  not  in  others.  Is  not  the 
inference  fair,  that  where  they  are  not  mentioned,  they 
are  not  intended  to  be  subjected  to  punishment?  And 
when  congress  took  up  the  doctrine  of  treason,  with  refer- 
ence to  the  constitution,  and  did  mention  the  aiders  and 


622  TRIAL   OF  AARON  BURR. 

abettors  in  some  cases,  but  not  in  others,  is  not  the  con- 
clusion equally  fair  that  they  did  not  intend  that  they 
should  be  involved  in  the  guilt  or  punishment  of  treason, 
except  where  they  are  expressly  mentioned  ?  But  a  still 
better  reason  may  be  given  why  congress  did  not  mean 
to  include  aiders,  counsellors,  &c.,  in  the  guilt  or  punish- 
ment of  treason.  It  was  prohibited  by  the  constitution 
of  the  United  States  to  enlarge  the  doctrine  of  the  com- 
mission of  treason,  and  that  they  knew  that  such  a  pro- 
vision would  be  void.  This  brings  me  to  the  considera- 
tion of  the  constitution  itself.  I  have  before  endeavored 
to  demonstrate  that  this  instrument  is  not  to  be  explained 
by  the  same  narrow  technical  rules  that  apply  to  a  statute 
made  for  altering  some  provision  of  the  common  law  ; 
but  that  such  a  construction  should  be  given,  as  is  con- 
sistent not  only  with  the  letter,  but  the  spirit  in  which 
the  great  palladium  of  our  liberties  was  formed. 

The  object  of  the  American  constitution  was  to  per- 
petuate the  liberties  of  the  people  of  this  country.  The 
framers  of  that  instrument  well  knew  the  dreadful  punish- 
ments inflicted,  and  the  grievous  oppressions  produced, 
by  constructive  treasons  in  other  countries,  as  well  where 
the  primary  object  was  the  security  of  the  throne  as 
where  the  public  good  was  the  pretext.  Those  gentle- 
men well  knew  from  history,  ancient  as  well  as  modern, 
that,  in  every  age  and  climate,  where  the  people  enjoyed 
even  the  semblance  of  liberty,  and  where  factions  or 
parties  existed,  an  accusation  of  treason,  or  a  design  to 
overturn  the  government,  had  been  occasionally  resorted 
to  by  those  in  power,  as  the  most  convenient  means  of 
destroying  those  individuals  whom  they  had  marked  out 
for  victims  ;  and  that  the  best  mode  of  insuring  a  man's 
conviction  was  to  hunt  him  down  as  dangerous  to  the 
state.  They  knew  that  mankind  are  always  the  same, 
and  that  the  same  passions  and  vices  must  exist,  though 
sometimes  under  different  modifications,  until  the  human 
race  itself  be  extinct.  That  a  repetition  of  the  same 
scenes  which  have  deluged  other  countries  with  their 
best  blood,  might  take  place  here,  they  well  knew  ;  and 
endeavored  as  far  as  possible  to  guard  against  the  evil,  by 
a  constitutional  sanction.  They  knew  that  when  a  state 
is  divided  into  parties,  what  horrible  cruelties  may  be 


ARGUMENT    OF    MR.      WICK  HAM.        623 

committed  even  in  the  name  and  under  the  assumed  au- 
thority of  a  majority  of  the  people,  and  therefore  en- 
deavored to  prevent  them.  The  events  which  have  since 
occurred  in  another  country,  and  the  sufferings  under 
Robespierre,  show  how  well  human  nature  was  under- 
stood by  those  who  framed  our  constitution. 

The  language  which  they  have  used  for  this  purpose  is 
plain,  simple,  and  perspicuous.  There  is  no  occasion  to 
resort  to  the  rules  of  construction  to  fix  its  meaning.  It 
explains  itself.  Treason  is  to  consist  in  levying  war 
against  the  United  States,  and  it  must  be  public  or  open 
war;  two  witnesses  must  prove  that  there  has  been  an 
overt  act.  The  spirit  and  object  of  this  constitutional 
provision  are  equally  clear.  The  framers  of  the  consti- 
tution, with  the  great  volume  of  human  nature  before 
them,  knew  that  perjury  could  easily  be  enlisted  on  the 
side  of  oppression  ;  that  any  man  might  become  the  vic- 
tim of  private  accusation  ;  that  declarations  might  be 
proved  which  were  never  made  ;  and  therefore  they 
meant,  as  they  have  said,  that  no  man  should  be  the  vic- 
tim of  such  secret  crimination,  but  that  the  punishment 
of  this  offense  should  only  be  incurred  by  those  whose 
crimes  are  plain  and  apparent,  against  whom  an  open 
deed  is  proved. 

Now  let  me  ask  the  opposite  counsel  what  security  is 
afforded  by  the  constitution  to  the  best  or  meanest  man 
in  this  country,  if  the  construction  on  which  they  insist 
be  correct  ?  and  whether,  instead  of  a  safeguard  to  the 
citizen,  they  do  not  reduce  it  to  an  unmeaning  phrase  ? 
According  to  the  construction  on  which  they  must  insist, 
or  abandon  the  prosecution,  all  that  is  wanted  to  fix  the 
guilt  of  treason  on  any  individual,  is  that  an  insurrection 
shall  have  existed  somewhere  in  the  United  States,  no 
matter  where.  Observe,  sir,  that  I  am  arguing  on  ab- 
stract principles,  and  not  with  a  particular  application. 
But  suppose  the  government  wished  to  destroy  any  man  ; 
they  find  him  in  Georgia :  an  insurrection  happens  in 
New  Hampshire.  This  will  suffice  for  the  purpose,  and 
if  this  cause  go  on,  they  will  be  obliged  to  contend  that 
less  will  suffice  ;  that  an  insurrection  is  not  necessary, 
but  that  even  a  peaceable  assemblage  going  down  the 
Ohio  is  sufficient  for  the  purpose.  They  merely  under- 


624  TRIAL     OF    AARON    BURR. 

take  to  prove  the  existence  of  an  insurrection  :  that  a 
number  of  people  have  committed  an  act  of  insurrection  ; 
the  man  who  is  selected  to  be  a  victim  is  dragged  from 
one  end  of  the  continent  to  the  other,  before  a  judge  who 
is  the  creature  of  the  government,  appointed  at  the 
pleasure  of  the  government,  liable  to  be  thrown  out  of 
office  if  he  offend  the  government  :  the  cause  comes  on 
to  trial  ;  they  prove  an  insurrection  ;  and  when  once  this 
insurrection  or  assemblage  can  be  proved  by  two  witness- 
es, nothing  remains  but  to  connect  with  it  the  individ- 
ual thus  marked  for  destruction  ;  and  as  this  may  be 
done  by  evidence  of  his  secret  acts  or  even  his  declara- 
tions, he  may  be  seized  and  hurried  by  force  from  New 
Hampshire  to  Georgia,  or  to  any  part  of  the  United 
States  which  his  accusers  may  chose  as  best  fitted  for 
their  purpose  ;  it  is  in  vain  that  he  may  prove  he  was  not 
present  when  the  offense  of  which  he  is  accused  was  com- 
mitted ;  that  he  never  at  any  period  of  his  life  had  been 
there  ;  that  the  actors  and  the  scene  were  alike  unknown 
to  him  ;  wretches,  who  from  views  of  interest  or  revenge, 
are  ready  to  further  the  views  of  his  oppressors,  will  pre- 
sent themselves,  and  he  may  be  convicted  of  treason  in 
levying  open  war  against  the  government,  with  people 
whom  he  never  saw,  and  at  a  place  where  he  never  was. 
Gentlemen  may  say  that  this  only  shows  that  the  citi- 
zen may  be  equally  the  victim  of  false  accusations  of 
other  offenses  ;  that  it  proves  nothing,  but  that  the  inno- 
cent may  be  condemned  on  the  testimony  of  perjured 
witnesses.  In  no  other  crime  can  a  man  be  punished 
except  in  the  county  or  district  where  he  committed  the 
act.  Let  gentlemen  mention  for  what  other  offense  an 
individual  may  be  tried  in  a  different  district  from  the 
one  in  which  he  did  the  act  which  constitutes  the  essence 
of  the  crime  ;  and  admitting  their  principle  in  its  full  force 
what  becomes  of  the  constitutional  provision  on  this 
subject?  where  is  the  constitutional  tribunal  to  try  him, 
"  an  impartial  jury  of  the  state,  wherein  the  offense  has 
been  committed?"  It  is  reduced  to  a  mere  nullity. 
The  constitution  meant  something  ;  but  according  to 
this  construction,  it  means  nothing,  and  deceives  instead 
of  affording  any  security.  It  may  be  objected  that  trea- 
sonable conspiracies  might  thus  go  unpunished.  To  this 


ARGUMENT    OF    MR.      W1CKHAM.        625 

it  is  a  sufficient  answer,  that  they  may  be  prosecuted  and 
charged,  according  to  the  truth  of  the  case.  Here  I  will 
mention  an  authority,  which  shows  the  propriety  and 
safety  of  limiting  and  fixing  the  definition  of  treason; 
and  how  much  the  English  statute,  from  which  the  words 
of  our  constitution  are  taken,  has  been  approved  of  in 
that  country.  Hume's  History  of  England,  vol.  2,  p.  487  : 

"  One  of  the  most  popular  laws  enacted  by  any  prince 
was  the  statue  which  passed  in  the  25th  year  of  this 
reign,  and  which  limited  the  cases  of  high  treason,  before 
vague  and  uncertain,  to  three  principal  heads  :  conspiring 
the  death  of  the  king,  levying  war  against  him,  and  adher- 
ing to  his  enemies  ;  and  the  judges  were  prohibited,  if  any 
other  cases  should  occur,  from  inflicting  the  penalty  of 
treason,  without  an  application  to  parliament.  The 
bounds  of  treason  were  indeed  so  much  limited  by  this 
statute,  which  still  remains  in  force  without  any  altera- 
tion, that  the  lawyers  were  obliged  to  enlarge  them,  and 
to  explain  "  a  conspiracy  for  levying  war  against  the 
king,  to  be  equal  to  a  conspiracy  against  his  life  ;  and 
this  interpretation  seemingly  forced,  has,  from  the  ne- 
cessity of  the  case,  been  tacitly  acquiesced  in." 

But  it  will  be  objected,  that  admitting  the  full  force 
of  this  reasoning,  it  can  not  avail  us,  as  the  point  has 
been  settled  by  a  decision  of  the  supreme  court  ;  and 
that  argument  must  yield  to  authority. 

At  the  same  time  that  I  deny  the  legislative  effect  of 
a  decision  of  the  supreme  court,  I  will  admit  that  it  is 
intitled  to  the  highest  respect,  as  evidence  of  the  law  ; 
and  that  the  reason  which  would  warrant  the  court  in 
departing  from  it,  must  be  strong  and  apparent:  but  to 
entitle  it  to  this  respect,  the  decision  must  have  turned 
upon  the  very  point  in  issue  :  and  if  the  case  should  ever 
occur  of  an  anomalous  decision  of  that  court,  in  opposi- 
tion to  known  and  established  rules  of  law,  I*  have  no  hesi- 
tation in  saying,  that  it  ought  not  to  form  a  rule  for  this 
court.  A  mere  dictum  or  an  expression  thrown  out  in 
argument  without  consideration  (or  if  there  were  consid- 
eration, yet  if  the  point  in  issue  did  not  turn  upon  it) 
ought  not  to  be  deemed  an  authority. 

There  is,  however,  no  such  decision  ;  the  case  never  has 
occurred  ;  for,  until  the  present  instance,  there  never  has 

—40 


626  TRIAL     OF    AARON    BURR. 

been  an  attempt  in  the  courts  of  the  United  States,  to 
convict  an  individual  for  treason,  who  was  not  actually 
on  the  spot  when  the  act  charged  in  the  indictment  was 
committed. 

I  will  admit  that  in  the  case  of  Messrs.  Bollman  and 
Swartwout,  which  was  only  a  question  of  commitment, 
decided  by  the  supreme  court,  there  is  a  dictum,  which 
is  reported  to  have  fallen  from  the  chief  justice  in  deliv- 
ering the  opinion  of  the  court,  that  is  in  opposition  to  the 
doctrine  I  have  been  contending  for  ;  but  the  decision  of 
the  court  did  not  turn  on  that  point ;  a  determination  of 
that  question,  one  way  or  the  other,  would  have  no  ef- 
fect on  the  judgment :  it  was  therefore  extrajudicial. 
Your  honor  can  set  me  right  if  I  be  mistaken  ;  but  I  be- 
lieve the  point  now  relied  on  by  the  prosecution,  either 
did  not  come  before  the  court,  or  was  very  slightly 
touched  on  by  the  bar:  it  was  a  mere  dictum  of  the 
judges  stated  arguendo,  an  oditer  opinion  delivered 
without  argument,  and  not  necessary  to  have  been  de- 
cided. A  decision  on  the  very  point  in  controversy  is 
evidence  of  the  law  ;  but  an  obiter  opinion,  a  mere  dictum 
or  decision  on  a  point  not  before  the  court,  is  no  author- 
ity at  all.  Points  of  law  not  immediately  arising  on  the 
question,  are  frequently  mentioned  by  judges,  by  way 
of  illustration  or  explanation  ;  and  such  opinions  never 
have  the  force  of  precedent.  The  question  before  the  su- 
preme court  was,  who  were  concerned  in  the  con- 
spiracy, and  who  were  not ;  but  the  point  now  before 
this  court,  never  came  before  the  supreme  court,  for, 
as  I  have  already  observed,  this  is  the  first  at- 
tempt in  this  country  to  convict  a  person  of  trea- 
son, who  was  not  present  when  the  act  was  committed. 
It  is  well  known  that  Vigol  and  Mitchel,  the  only  per- 
sons of  the  multitude  concerned  in  the  western  insurrec- 
tion in  1794,  who  were  convicted  and  sentenced  to  die 
(but  were  afterwards- pardoned),  though  the  most  actively 
engaged,  were  mere  instruments  instigated  and  per- 
suaded by  others;  but  what  was  the  conduct  of  the  gov- 
ernment of  the  United  States  on  that  occasion?  Were 
those  who  fomented,  advised,  or  encouraged  the  insur- 
rection, but  were  not  actors  in  it,  indicted  and  prose- 
cuted ?  No  actors  and  actors  only,  were  indicted  ;  and 


ARGUMENT    OF    MR.      WICK  HAM.         627 

I  trust  this  attempt,  which  is  as  novel  as  it  is  dangerous, 
will  never  be  sanctioned  by  this  court ;  and  if  I  know  my 
own  mind,  I  feel  a  better  and  more  powerful  motive  than 
professional  duty,  in  endeavoring  to  prevent  the  estab- 
lishment of  their  doctrine  ;  a  most  ardent  desire  to  avert 
from  my  country,  my  family,  and  myself,  an  evil  so  very 
pernicious  and  repugnant  to  every  principle  of  civ.il  lib- 
erty. I  would  unite  with  themselves  with  as  much  zeal 
and  energy  as  possible,  in  opposing  it ;  for  if  it  were  to 
be  sanctioned  as  a  confirmed  doctrine,  it  might  be  justly 
said,  that,  however  perfect  in  theory,  our  government 
was  a  practical  tyranny  at  the  pleasure  of  those  who 
have  the  administration  of  the  government  in  their 
hands.  It  is  on  these  grounds  that  I  have  argued  this 
cause ;  not  solely  in  defense  of  my  client,  but  for  the 
sake  of  the  community  at  large,  and  of  posterity. 

If  the  law  be  as  I  have  stated,  it  is  not  very  extraor- 
dinary that  the  court  should,  in  a  point  not  immedi- 
ately before  it,  have  adopted  the  dicta  of  writers  in 
England  as  authority,  and  have  applied  them  to  this 
country,  without  full  consideration  of  all  the  points  on 
which  the  question  turned. 

I  think,  therefore,  that  it  is  proved  that  under  the 
constitution  of  the  United  States  no  man  can  be  con- 
victed of  treason,  who  was  not  present  when  the  overt 
act  charged  in  the  indictment  was  committed. 

Before  I  proceed  further,  I  beg  leave  to  remark  that  all 
my  arguments  and  illustrations  are  on  abstract  principles ; 
that  I  wish  to  make  no  particular  or  individual  allusions  ; 
and  that  I  do  not  mean  the  smallest  reflection  on  the 
government :  nor  should  I  think  myself  justified  to  waste 
the  time  of  the  court  in  making  such  observations.  I 
now  proceed  with  my  argument. 

If,  contrary  to  my  firm  conviction,  I  should  be  mistaken 
on  this  point,  I  contend, 

Secondly,  That  the  offense,  if  it  be  punishable,  should 
be  laid  in  the  county  and  district  where  the  act  was  done 
by  the  accused  which  renders  him  guilty.  If  he  be  guilty, 
it  is  by  means  of  some  act  done  by  himself;  and  that  act 
must  have  locality.  The  prosecutors  must  prove  the 
fact  as  laid  in  their  indictment.  They  have  pledged 
themselves  to  furnish  proof  in  support  of  the  charge 


6a8  TRIAL     OF    AARON    BURR. 

therein  specified.  It  being  admitted  that  Mr.  Burr 
was  not  present  when  the  act  was  done,  we  contend  that 
they  should  at  once  withdraw  their  indictment,  as  it  does 
not  contain  a  specification  that  can  be  supported  by  the 
evidence.  If  he  have  conspired  to  levy  war  against  the 
United  States,  and  it  be  admitted  that  the  war  was 
carried  on  by  others  in  his  absence,  his  offense  can  only 
be  punished  by  a  special  indictment  charging  the  facts 
as  they  existed. 

To  this  will  be  objected  the  rule  of  law,  that  in  treason 
all  are  principals  ;  and  that  therefore,  in  construction  of 
law,  the  accessory  was  present  aiding  and  abetting  at  the 
same  time  and  place  where  the  overt  act  was  committed. 
But  this  objection  arises  from  a  misapplication  of  the 
rule  ;  aiders  and  abettors  after  the  fact  are  as  much  in 
construction  of  law,  principals,  as  those  before  the  fact  ; 
yet  there  is  no  doubt  that  they  must  be  tried,  not  in  the 
county  where  the  war  was  levied,  but  where  they  did 
the  act,  which  makes  them  principal  traitors  by  relation. 
The  rule  of  law  is  not  founded  on  arbitrary  principles,  but 
on  maxims  of  immutable  justice  and  reason.  Though  it 
requires,  as  the  best  means  of  deterring  people  from  the 
commission  of  so  henious  a  crime,  that  all  who  are  in  any 
manner  concerned  in  it  should  be  equally  punished,  yet  to 
prevent  oppression,  it  must  be  so  construed  as  to  be  consis- 
tent with  another  sacred  rule  of  law,  that  the  accused  must 
be  informed  of  the  precise  nature  of  the  charge  against 
him,  in  order  that  he  may  be  prepared  to  defend  himself. 
The  accusations,  whether  in  an  indictment  or  informa- 
tion, should  specially  state  the  offense  which  is  intended 
to  be  proved  against  the  accused.  He  can  not  other- 
wise be  prepared  to  defend  himself.  An  offense,  differ- 
ent from  that  which  is  charged  against  him,  and  which 
alone  he  can  be  expected  to  meet  with  his  defense,  is 
never  allowed  to  be  given  in  evidence.  This  is  the  foun- 
dation of  all  the  niceties  in  criminal  prosecutions;  but 
this  objection  is  not  founded  on  any  critical  nicety,  but 
on  the  broad  merits  of  the  case.  If  the  indictment  were 
not  to  give  notice  of  the  precise  nature  of  the  accusation, 
the  party  accused  might  be  oppressed  and  destroyed. 
Does  this  indictment  inform  us  that  it  was  meant  to  be 
proven  that  Mr.  Burr  was  not  present  when  the  overt  act 


ARGUMENT  OF  MR.    WICKHAM.          629 

was  committed,  but  that  he  was  guilty  of  treason,  by  being 
connected  with  those  who  perpetrated  the  overt  act  ? 
On  the  contrary,  is  it  not  presumable  from  the  charge 
in  this  indictment,  that  Mr.  Burr  himself  committed  the 
act,  and  levied  the  war  against  the  United  States  in  per- 
son ?  What  information  does  the  indictment  give  of  the 
true  nature  of  the  charge  meant  to  be  supported  ?  For 
what  purpose  did  they  comply  with  the  formality  required 
by  the  act  of  congress  of  giving  him  a  copy  of  the  indict- 
ment, but  to  inform  him  that  they  meant  to  prove  that 
he  did  the  act  on  Blannerhasset's  island  in  person?  It 
could  admit  of  no  other  rational  construction,  than  that 
they  intended  to  prove  that  he  was  there  at  the  time. 
Presuming  this,  we  could  not  make  this  motion,  till  \ve 
found  by  what  proof  they  meant  to  support  the  indict- 
ment. The  accused,  therefore,  concludes  that  the  charge 
to  be  supported  is,  that  he  in  person  levied  the  war 
against  the  United  States  at  the  place  mentioned  in  the 
indictment.  In  order  to  completely  negative  the  idea  of 
his  being  charged  as  an  accessory  or  aider  to  other  people, 
this  indictment  is  drawn  in  a  special  and  peculiar  man- 
ner ;  not  as  indictments  are  generally  formed.  It  charges 
that  he  committed  the  act  on  Blannerhassett's  Island,  with 
divers  persons  unknown.  Neither  Mr.  Blannerhassett  nor 
Tyler,  nor  any  other  particular  person  is  named,  but  he 
is  alleged  to  have  done  the  act  with  persons  unknown. 

But  it  will  be  objected,  that  if  guilty,  he  must  know 
whether  the  act  is  done  or  not,  and  be  prepared  to  de- 
fend himself;  and  that,  if  not  guilty,  no  evidence  can  be 
given  that  will  fix  the  crime  upon  him  ;  and  there  is  no 
necessity  of  a  specification.  But  this  objection  goes 
directly  to  prove  that  there  is  no  necessity  for  an  indict- 
ment at  all.  The  court  knew  that  an  accusation  might 
be  supported  by  perjury,  and  circumstances  may  create 
a  presumption  of  guilt  which  testimony  would  explain, 
and  which  explanation  would  evince  the  innocence  of  the 
accused.  Besides,  if  the  general  doctrine  contended  for 
on  the  other  side  be  correct,  a  man  may  be  guilty  of 
treason  in  being  connected  with  a  conspiracy  to  levy  war, 
and  be  really  a  stranger  to  the  commission  of  the  overt 
act,  which  makes  him  a  traitor  by  relation. 
1  It  will  be  said  that  levying  war  is  always  a  public  act, 


630  TRIAL     OF    AARON    BURR. 

and  therefore  there  is  no  difficulty  in  knowing  what  is 
intended  to  be  proved.  Two  answers  may  be  given  to 
this  objection  :  one  is,  that  granting  this  to  be  true,  the 
accused  is  to  be  informed  of  the  charge  against  him,  not 
by  public  rumors,  but  by  the  terms  of  the  accusation 
itself.  The  other  applies  to  this  particular  case  only. 
The  general  doctrine  always  has  been,  that  to  prove  the 
charge  of  levying  war,  it  must  be  shown  that  there*  have 
been  overt  acts  ;  and  as  the  charge  must  correspond 
with  the  proofs,  the  course  has  always  been  to  state  in 
the  indictment  that  the  accused  levied  public  war.  In 
every  indictment  for  treason  that  I  have  met  with,  in  the 
State  Trials  or  books  of  entries,  the  word  "  public,"  or 
an  equivalent  word  is  inserted.  The  words,  "  public  war, 
did  prepare,  begin  and  levy,"  are  in  the  indictment  in  the 
following  cases:  8  State  Trials,  p.  219,  in  the  prosecution 
against  Damaree ;  in  that  against  Willis,  and  in  that 
against  Purchase,  p.  220  ,  in  9  State  Trials,  p.  543,  in  the 
indictment  against  Townley,  the  words  "  did  prepare, 
order,  wage  and  levy  a  public  and  cruel  war  "  are  used  ; 
and  it  is  stated  in  the  report,  that  that  form  of  indictment 
was  made  use  of  against  all  the  rebels  who  were  tried  in 
Surry,  except  one  for  a  special  reason. 

The  same  words  are  used  in  the  indictment  against 
Lord  Kilmarnock,  page  592  of  the  same  volume,  and 
against  Lords  Cromarty  and  Balmerino,  in  page  593.  It 
is  also  so  stated  in  Foster's  Crown  Law,  6.  In  Tremaine's 
Pleas  of  the  Crown,  2,  the  indictment  for  levying  war  is 
in  the  same  form,  "traitorously  did  prepare,  levy,  and 
ordain  public  war  ;  "  and  in  this  country  the  indictment 
against  John  Fries  has  the  same  words,  "  did  ordain, 
prepare,  and  levy  public  war  against  the  United  States." 

In  the  present  instance,  gentlemen  do  not  say  in  the 
indictment  that  there  was  a  public  war ;  they  only  tell 
us  of  an  act  that  may  be  private  or  public.  They  do 
not  pretend  to  say  that  there  were  marching  and  coun- 
ter-marching in  military  array ;  that  they  had  great 
guns,  &c.,  drums  beating,  &c. 

In  the  present,  the  word  public  is  omitted  in  both 
counts  of  the  indictment ;  I  do  not  suppose  that  it  was 
done  studiously.  Whether  this  were  done  by  accident, 
"  currente  calamo,"  or  to  make  it  more  palatable  to  the 


ARGUMENT    OF    MR.     WICK  HAM.         631 

grand  jury,  need  not  be  inquired.  Whether  this  word 
be  considered  as  operative  or  be  omitted  in  any  indict- 
ment in  this  country,  I  do  not  know,  but  it  is  used  in 
all  the  English  precedents.  I  only  use  this  argument 
for  the  purpose  of  showing  that  there  is  no  ground  for 
presuming  knowledge  of  the  fact,  if  indeed  such  a  fact 
ever  existed.  On  principle,  therefore,  it  is  apparent 
that  this  indictment  does  not  warrant  the  introduction 
of  evidence  to  charge  the  accused  with  the  acts  of  others 
when  he  was  present.  Let  me  ask  if  a  fiction  that  the 
accused  levied  war  be  admitted,  what  necessity  is  there 
for  another  fiction,  that  hewas  at  a  place  where  he  was  not  ? 

The  only  argument  on  common-law  principles  that 
can  justly  be  urged,  would  go  to  prove  that  he  could 
not  be  tried  anywhere. 

In  another  branch  of  this  argument  I  have  had  occa- 
sion to  show,  that  although  it  is  laid  down  in  the  Eng- 
lish books,  that  all  are  principals  in  treason,  yet  that  this 
rule  only  applies  to  the  degree  of  punishment  and  de- 
nomination of  the  offense  ;  that  in  the  progress  of  the 
prosecution,  the  same  rules  of  law  which  apply  to  the 
case  of  accessories  in  felony,  are  to  be  followed  with  re- 
spect to  aiders  and  abettors  before  the  fact  in  treason  ; 
and  that  this  principle  has  been  stated  by  most  of  the 
writers  who  have  stated  the  general  rule.  I  shall  have 
occasion  in  another  part  of  my  argument  to  explain  this 
principle  more  fully. 

Now,  it  is  clear  that  at  common  law  an  accessory  to  a 
felony  which  was  committed  in  a  different  county  from 
the  one  where  the  accessorial  act  was  done,  was  not 
punishable  at  all.  At  common  law,  the  accessory  could 
not  be  arraigned  till  the  principal  were  attained.  If  the 
principal  had  never  been  indicted  at  all,  had  stood  mute, 
had  challenged  above  thirty-five  jurors  peremptorily, 
had  claimed  the  benefit  of  clergy,  had  obtained  a  par- 
don, or  had  died  before  attainder,  the  accessories,  in  any 
of  these  cases,  could  not  be  arraigned.  At  common 
law,  therefore,  if  a  felony  were  committed  by  A,  and  B 
had  counselled,  procured,  or  commanded  him  to  com- 
mit it,  and  A  had  died,  been  pardoned,  or  stood  mute, 
&c.,  so  that  he  had  not  been  and  could  not  be  convicted. 
B  could  not  be  tried  at  all.  But  a  statute  amended  the 


032  TRIAL   OF  AARON  BURR. 

law  in  this  respect  (See  Hale's  P.  C.  ch.  57,  p.  62).  But 
the  constitution  of  the  United  States  has  fixed  the 
place  of  trial,  if  indeed  it  can  take  place  anywhere. 

The  eighth  article  of  amendments  to  the  constitution, 
provides  that  "  in  all  criminal  prosecutions,  the  party 
accused  shall  have  a  speedy  and  public  trial,  by  an  im- 
partial jury  of  the  state  or  district  where  the  crime  was 
committed.  This  was  meant  to  be  a  substantial  provi- 
sion, securing  a  trial  by  the  vicinage  ;  and  yet  according 
to  the  construction  contended  for  by  the  gentlemen  on 
the  other  side,  it  is  merely  illusory,  and  a  man  who  was 
born  in  Virginia,  and  was  never  out  of  the  limits  of  the 
state,  may,  notwithstanding  the  constitutional  provision 
in  his  favor,  be  hurried  off  to  New  Hampshire,  and 
tried  for  an  offense  which  he  never  did  commit,  and 
which  it  is  impossible  he  should  have  committed  there. 
At  all  events  the  rule  must  be  uniform.  Now,  it  must  be 
admitted  that  an  aider  or  abettor  after  the  fact  must  be 
tried  in  the  county  and  district  where  he  committed  the 
offense  :  and  what  sufficient  reason  can  be  assigned  for 
a  different  rule  in  the  case  of  an  aider  or  abettor  before 
the  fact? 

No  precedent  can  be  produced  in  point  on  either  side  ; 
because,  except  in  the  case  of  Sir  Nicholas  Throgmorton, 
there  is  no  instance  to  be  found  in  the  whole  judicial 
history  of  England  (under  any  of  its  different  forms  of 
government,  being  sometimes  a  despotism,  sometimes  a 
limited  monarchy,  sometimes  a  republic),  of  an  attempt 
like  the  present,  under  any  form  of  indictment ;  and  that 
case,  as  far  as  it  is  an  authority,  is  directly  in  our  favor. 
He  was  indicted  for  levying  war  against  the  queen  ;  and 
the  evidence  was  a  connection  with  Sir  Thomas  Wiatt, 
who  raised  an  insurrection  in  Kent,  and  marched  towards 
London,  but  did  not  enter  within  the  jurisdiction  of  the 
city,  which  begins  at  Temple  Bar.  Yet  Throgmorton 
was  tried  within  the  jurisdiction  of  the  city,  and  the 
lord  mayor  presided  at  the  trial,  and  he  was  acquitted. 

It  is  true  that  it  is  laid  down  in  East,  an  elementary 
writer,  who  certainly  is  himself  no  authority,  that  there  is 
nothing  to  remark  of  difference  between  principals  and 
accomplices  in  respect  of  the  indictment  ;  but  so  far  as 
we  can  judge  from  cases  in  any  degree  analogous,  the 


ARGUMENT    OF    MR.      WICK  HAM.        633 

rule  has  been  different.  In  Tremaine's  Pleas  of  the  Crown, 
in  the  case  of  an  indictment  against  Mary  Speke,  for  aid- 
ing the  duke  of  Monmouth  and  others  in  the  act  of  levy- 
ing war  against  the  king,  the  charge  is  special.  As  this 
was  in  the  4th  year  of  the  reign  of  James  II.  and  the  act 
is  charged  as  having  been  committed  in  the  county  of 
Somerset  in  the  west  of  England,  it  must  have  been  one 
of  the  cases  that  came  before  the  inhuman  Jefferies  ;  and 
it  seems  that  even  he  deemed  it  necessary  that  the  ac- 
cused should  at  least  be  apprised  of  the  nature  of  the 
charge,  by  a  special  indictment  charging  the  facts  as  they 
existed. 

It  may  be  said  that  the  accused,  in  that  case,  was  in 
the  nature  of  an  accessory  after  the  fact  ;  but  this  can 
not  be  supported,  for  she  was  an  assister  at  or  during  the 
fact,  which  is  the  same  thing  as  an  accessory  before  the 
fact.  How  was  she  charged?  The  indictment  is,  that 
she,  knowing  the  said  James  Scott  (the  duke  of  Mon- 
mouth) to  be  a  false  traitor,  and  that  he,  with  many  other 
false  traitors  to  the  number  of  4,000.  had  assembled  and 
collected  and  "  had  traitorously  prepared,  levied  and  raised 
war,  insurrection,  and  rebellion  against  the  king,  &c.,  for 
the  comforting,  assisting,  aiding,  and  supporting  of  the 
said  James  Scott,  &c.,  in  the  war,  rebellion,  and  insurrec- 
tion aforesaid,  &c.,  did  cause  to  be  conveyed  and  carried 
to  the  said  James  Scott,  &c.,  cart  loads  of  bread  and  of 
cheese,  &c."  In  a  case  of  felony,  such  an  accomplice 
would  be  an  accessory  before  the  fact.  There  are  in  law 
but  two  species  of  accessories — one  before,  the  other  after. 
A  person  aiding  at  the  time  when  the  act  was  done  has 
always  in  construction  of  law  (except  where  present  and 
deemed  a  principal)  been  considered  as  an  accessory  be- 
fore the  fact. 

In  the  case  of  Somerville,  I  Anderson's  Reports,  p.  106, 
although  the  indictment  is  not  set  out  at  large,  the  form 
is  particularly  described,  and  it  appears  to  have  been  set- 
tled on  great  consideration,  "that  aiders  and  the  other 
procurers  of  the  treason  should  be  indicted  specially  for 
the  procurement."  Somerville  was  procured  and  per- 
suaded by  Edward  Arden  and  his  wife,  to  kill  the  queen. 
It  was  on  great  consideration  determined,  that  according 
to  law,  if  all  three  were  indicted  for  "  levying  war,"  that 


634  TRIAL   OF  AARON  BljRR. 

he  should  be  charged  with  doing  the  act,  and  that  they 
should  be  indicted  specially  for  procuring  and  aiding  him, 
that  each  ought  to  be  charged  according  to  the  truth  of 
the  case  ;  but  that  a  general  indictment  was  sufficient  to 
support  the  charge  of  compassing  the  death  of  the  queen  ; 
and  on  great  consideration  they  determined  that  aiders 
and  other  procurers  of  treason  should  be  indicted  special- 
ly for  the  procurement. 

But  if  this  form  of  indictment  be  insisted  on  as  being 
proper  on  this  occasion,  it  must  be  under  a  general  rule 
applicable  to  all  cases  of  aiding  in  the  commission  of  an 
overt  act  of  treason,;  and  if  in  any  case  a  departure  from 
the  rule  for  the  purposes  of  justice  would  be  proper,  it 
would  be  such  a  one  as  the  present ;  none  requires  speci- 
fication more. 

Now  among  the  treasons  created  by  act  of  parliament, 
which  are  collected  in  I  Hale's  Pleas  of  the  Crown,  ch. 
24,  p.  280,  is  one  created  by  the  28  Hen.  8,  ch.  18,  by 
which  "  marrying  any  of  the  king's  children  or  reputed 
children,  or  his  sisters,  or  aunts  of  the  father's  part,  or 
the  children  of  the  king's  brethren,  or  sisters,  without 
the  king's  license  under  his  great  seal,  or  deflowering  of 
any  of  them,  is  enacted  to  be  treason.  Now  we  may 
suppose  a  very  probable  circumstance,  that  a  female  ac- 
complice in  one  of  those  treasons,  for  instance  one  of  the 
maids  of  honor,  should  be  prosecuted  for  aiding  and 
abetting  the  principal  traitor,  would  she  be  indicted  by 
her  name,  as  a  female,  with  the  addition  of  spinster,  for 
marrying  the  king's  aunt,  or  deflowering  his  daughter? 
or  would  she  be  charged  specially  with  aiding  or  abetting 
the  male  person  who  did  the  act  ?  By  33  Hen.  8,  I  Hale, 
281,  it  is  made  treason  in  any  woman  the  king  shall 
intend  to  marry,  thinking  her  to  be  a  true  maid,  to  marry 
him  if  she  be  not  so.  Now  it  is  a  very  possible  case  that 
the  paramour  of  such  a  woman  (I  will  suppose  her  to  be 
one  of  the  maids  of  honor,  arid  him  to  be  a  lord  of  the 
bedchamber)  should  aid  her  in  imposing  on  the  king. 
She  is  tried,  found  guilty  and  executed.  How  is  he  to 
be  so  charged  ?  would  he  be  indicted  by  the  name  of  A. 
B.  gentleman,  or  by  his  title  of  lord,  for  marrying  the 
king,  not  being  an  unspotted  virgin,  or  to  use  the  language 
of  the  act,  a  pure  and  clean  maid?  This  may  seem  to 


ARGUMENT    OF    MR.      WICKHAM.        635 

be  treating  the  subject  with  more  levity  than  I  could 
wish  to  do  ;  but  the  argument  directly  applies  ;  it  exposes 
the  fallacy  of  gentlemen's  arguments.  It  may  indeed  be 
said  that,  in  these  instances,  there  would  be  a  physical 
impossibility  in  the  act,  as  charged  in  the  indictment, 
and  that  therefore  in  such  a  case  it  ought  to  be  charged 
so  as  to  correspond  with  the  fact ;  but  this  is  an  admis- 
sion that  it  may  be  charged,  and  if  in  any  case,  it  surely 
ought  in  such  a  one  as  the  present  ;  for  it  is  as  much  a 
physical  impossibility  that  Mr.  Burr  should  be  at  Blan- 
nerhassett's  island  and  in  Kentucky  (places  several  hun- 
dred miles  distant)  at  the  same  time,  as  that  an  individ- 
ual should  be  at  the  same  time  a  man  and  a  woman. 

A  little  attention  to  principles  must  satisfy  us,  that 
levying  war  may  consist  of  a  great  variety  of  acts  ;  yet  it 
is  one  entire/  offense.  The  expression  in  the  act  is 
"  levying  war,"  in  the  indictment  "  levying  a  public  war." 
Now  a  war  may  consist  of  a  single  act  of  hostility,  or  a 
great  variety  of  acts.  If  a  man  were  concerned  in  the  re- 
bellion of  1715  and  in  that  of  1745,  though  there  is  a  com- 
plete space  of  thirty  years  between  them,  he  might  be 
indicted  for  both,  because  they  are  separate  rebellions 
and  insurrections;  but  if  he  were  concerned  in  that  of 
1745  only,  he  could  not  be  charged  with  the  battles  of 
Preston  Pans,  Culloden,  and  taking  of  Edinburgh,  Man- 
chester, Carlisle,  &c.  in  separate  indictments  in  succes- 
sion :  for  if  so,  there  might  be  a  thousand  or  more  trials, 
though  there  was  but  one  rebellion  ;  it  might  be  divisi- 
ble ad  infinitum. 

After  charging  generally  that  war  was  levied,  every 
indictment  charges  certain  overt  acts,  and  these  overt 
acts  are  laid  for  the  yiformation  of  the  party.  The  pro- 
secutor may  lay  as  many  overt  acts  as  he  thinks  proper, 
and  select  which  he  chooses ;  but  they  must  be  all  laid 
at  once  in  the  same  indictment.  They  are  the  charge 
which,  if  proved  by  evidence,  supports  the  indictment. 
If  the  charge  be  for  the  information  of  the  party,  is  he 
not  excused  if  it  be  not  made  good  ?  Was  it  ever  heard 
that  a  person  might  be  tried  over  and  over  again  for  trea- 
son in  the  same  rebellion  ?  Has  it  ever  been  pretended, 
that,  when  a  person  came  prepared  to  contest  particular 
facts,  other  facts  were  to  be  proved  against  him  ?  For 


636  TRIAL     OF    AARON    BURR. 

•  example,  a  person  is  charged  with  a  succession  of  facts 
done  at  Edinburgh,  Falkirk,  Preston  Pans,  Carlisle,  &c. ; 
he  comes  prepared  to  prove  an  "alibi ;  "  but  on  the  trial 
finds  instead  of  these  facts  being  intended  to  be 
proved,  that  the  counsel  for  the  prosecution  introduce 
evidence  of  facts  committed  at  places  totally  different 
from  those  in  the  indictment,  and  not  committed  by 
himself,  but  by  others  when  he  was  not  present ;  would 
not  this  evidence  be  a  surprise  upon  him  ?  would  it  be 
admitted?  So  in  treason  for  compassing  the  king's 
death,  is  there  a  single  instance  in  which  an  overt  act, 
not  charged  in  the  indictment,  and  distinct  from  that 
which  is  charged,  has  been  attempted  to  be  proved  on 
the  prisoner?  There  is  not.  An  overt  act  not  charged 
may  be  proved  when  it  tends  to  prove  that  which  is 
charged  ;  but  then  that  is  never  admitted  till  after  the 
overt  act  charged  is  proved. 

They  charge  Mr.  Burr  with  being  at  Blannerhassett's 
island,  when  he  was  two  or  three  hundred  miles  off  in 
Kentucky,  and  instead  of  proving  it,  they  offer  to  prove 
that  the  act  was  done  by  others.  If,  however,  I  be  mis- 
taken in  this  point,  and  it  were  intented  to  make  us  re- 
ponsible  for  the  acts  of  others,  the  indictment  should  have 
stated  the  charge  generally;  and  their  names  should  be 
mentioned  in  the  indictment ;  and  we  should  be  charged 
with  doing  the  act  jointly  with  them.  In  the  present 
case  this  is  not  only  omitted,  but  the  prosecutor  by  the 
very  terms  of  the  indictment  negatives  the  charge  of  aid- 
ing others,  and  thus  becoming  responsible  for  their  acts. 
It  is  expressly  stated  that  we  levied  war  with  certain 
persons  unknown.  This  is  contrary  to  the  fact  as  as- 
sumed by  themselves  :  for  the  fact  that  known  persons 
have  committed  an  overt  act,  and  have  done  so  in  con- 
nection with  us,  is  the  sole  ground  on  which  it  is  pre- 
tended that  the  indictment  can  be  maintained. 

In  answering  this  objection,  the  counsel  for  the  pros- 
ecution may  shelter  themselves  under  the  form  of  law 
and  say  that  precedents  are  in  their  favor ;  now  a  re 
ference  to  the  precedents  will  satisfy  the  court,  that 
nothing  is  more  common  than  to  charge  persons  with 
committing  treason  with  others,  who  are  not  indicted 
themselves. 


ARGUMENT    OF    MR.     WICKHAM.         637 

In  Tremain's  Pleas  of  the  Crown,  there  are  two  indict- 
ments for  conspiracy  to  levy  war,  with  one  who  is  not  a 
party  to  the  indictment  :  the  first  in  pp.  279,  280,  the  case 
of  the  King  v.  Gerard,  who  is  indicted  and  charged  with 
conspiring  and  imagining  the  death  of  the  king  "with 
divers  other  false  rebels  and  traitors  to  the  jurors  un- 
known ;"  and  also  with  "  falsely,  wickedly  and  traitor- 
ously with  James  duke  of  Monmouth  and  with  divers 
other  false  traitors  to  the  jurors  aforesaid  unknown,  as- 
sembling, &c.,  to  levy  and  make  war  and  rebellion  against 
the  king,  Sec.,"  and  in  page  307  in  the  indictment  against 
John  Hambden,  it  is  charged  that  he  "  did  traitorously, 
with  diver  other  false  rebels  and  traitors  to  the  j.urors 
aforesaid  unknown,  conspire,  compass,  imagine,  &c./'  and 
that  "  he  traitorously  with  James  late  duke  of  Monmouth 
and  divers  others  false  traitors,  to  the  jurors  aforesaid 
unknown,  did  assemble,  meet,  consult  and  agree  to  raise 
and  procure  divers  great  sums  of  money,  and  great  num- 
bers of  armed  men  traitorously  to  levy  and  make  war  and 
rebellion  against  the  king,"  &c.  Here  is  an  express  speci- 
fication of  his  having  associated  in  the  treason  with  the 
duke  of  Monmouth  and  others  unknown.  There  are  also 
a  number  of  cases  in  the  State  Trials,  in  which  the  ac- 
cused are  charged  with  a  design  to  levy  war  with  persons 
who  are  named,  though  those  persons  are  not  parties  to 
the  indictment  ;  among  a  number  of  others  I  could  refer 
the  court  to  the  case  of  Doctor  Hewitt,  2  S.  T.  p.  281,  and 
the  case  of  John  Morant,  Esq.,  ibid.  p.  291,  and  4  S.  T.  p. 
132,  the  case  of  Henry  Cornish,  who  was  indicted  for 
that  "  traitorously  knowing  James  the  late  duke  of  Mon- 
mouth, William  Russel,  Esq.,  and  Thomas  Armstrong, 
knight,  and  divers  other  traitors,  traitorously  to  have 
conspired  the  death  of  the  king,  he,  the  said  Henry  Cor- 
nish, as  a  false  traitor,  did  traitorously  promise  to  the  said 
other  traitors  to  be  aiding  and  assisting  in  the  treason 
aforesaid.  In  all  these  cases,  in  laying  the  overt  act 
charged  in  the  indictment,  the  connection  of  the  accused 
with  certain  other  individuals  named  is  expressly  stated. 

It  is  a  rule  of  law,  that  a  charge  must  be  proved  as  laid. 
It  would,  therefore,  have  been  inadmissible  to  give  in 
evidence  a  connection  with  other  persons  than  those 
named  in  the  indictment,  and  not  with  them. 


638  TRIAL     OF    AARON    BURR. 

Those  who  framed  these  indictments  must,  therefore, 
have  thought  it  necessary  to  shape  their  charge  in  this 
form,  in  order  to  make  it  correspond  with  the  proofs  ; 
and  what  case  can  be  conceived,  in  Avhich  a  specification 
would  be  more  necessary  than  the  one  before  the  court, 
when  it  is  admitted  that  the  accused  was  not  present  ? 
when  an  attempt  is  made  to  charge  him  solely  on  the 
ground  of  a  connection  with  others,  can  it  be  right  to 
make  him  liable  for  their  acts,  when  they  are  not  even 
named  in  the  indictment  ?  Nay  more,  when  it  is 
expressly  declared,  that  he  did  the  act,  and  the  others, 
who  aided  him  in  doing  it,  were  unknown  ?  Suppose 
there  were  three  distinct  insurrections  ;  he  is  charged  with 
levying  war  generally,  not  a  private  or  secret,  but  a  pub- 
lic war,  could  Mr.  Burr  tell  which  of  the  three  insurrec- 
tions he  was  intended  to  be  charged  with  ?  There  is  no 
specification,  and  he  can  not  tell  to  which  of  several  acts 
of  war  the  charge  is  to  be  applied.  Suppose  an  assem- 
blage in  London  to  pull  down  and  destroy  conventicles, 
meeting-houses,  or  bawdy-houses,  and  a  person,  thought 
to  be  connected  with  those  who  composed  the  assemblage, 
but  who  was  not  present,  should  be  indicted  for  "  levying 
war,"  as  in  the  case  now  before  the  court,  without  nam- 
ing any  of  the  persons  who  were  present  :  he  would  not 
know  how  to  defend  himself  against  this  constructive 
treason :  he  could  not  tell  from  the  indictment  for 
what  he  was  indicted,  whether  for  pulling  down  and 
destroying  bawdy-houses  or  conventicles,  or*  in  con- 
nection with  whom  it  was  intended  to  charge  him  ; 
but  had  he  been  informed  by  the  indictment  what 
was  to  be  proved  against  him,  he  might  be  able  to  prove 
an  alibi,  or  to  establish  his  innocence  satisfactorily ;  but 
a  prosecution  in  such  a  case,  without  a  specification  such 
as  I  contend  for,  has  never  been  attempted. 

If  it  be  once  established  that  special  indictments  are 
necessary  by  the  law  of  England,  the  argument  is  con- 
clusive to  show  that  no  indictment  can  be  sustained 
under  the  constitution,  for  such  an  act  as  is  charged 
against  Mr.  Burr.  Treason  consists  in  levying  war  only  ; 
but  he  is  not  charged  (in  fact,  though  he  is  by  the  indict- 
ment) with  levying  the  war  personally  himself,  but  with 
being  connected  with  others  who  did  levy  it.  Can  an 


ARGUMENT    OF    MR.     WICKHAM.         639 

accessory  after  the  fact,  or  a  receiver  of  a  traitor,  be  in. 
dieted  under  the  constitution  ?  If  he  can  not,  no  mere 
can  the  accomplice  before  the  fact.  If  a  special  charge 
be  necessary  on  an  indictment  of  an  accessory  after  the 
fact,  it  is  equally  necessary  to  charge  the  accessory  before 
the  fact  specially ;  and  then  the  indictment  does  not 
conform  to  the  constitution,  which  requires  that  the  war 
should  be  levied  by  the  accused.  Treason  consists  ir, 
"  levying  war,"  not  in  advising  it,  or  receiving  him  who 
has  levied  it.  If  you  allege  an  act  as  done  by  others,  do 
you  not  charge  that  it  is  done  by  the  others  ?  In  Ensv 
land  a  special  charge,  particularly  stating  the  act  of  pro- 
curement or  comforting,  is  proper;  but  here  it  is  forbid- 
den by  the  constitution,  treason  being  expressly  limited 
to  the  act  of  war,  not  of  advising  or  receiving.  But  the 
spirit  and  meaning  of  the  constitution  are  not  to  be 
evaded  by  charging  generally  what  ought,  to  be  charged 
specially.  I  submit,  therefore,  whether  upon  principle 
or  practice,  any  evidence  can  be  given  of  the  acts  of  third 
persons,  not  named  in  the  indictment,  when  it  is  admitted 
that  the  accused  himself  was  absent. 

Although  I  trust  that  some,  if  not  all  the  points  that 
I  have  contended  for,  are  decidedly  in  favor  of  the  accused, 
there  is  one  more,  which,  as  it  rests  only  on  the  plainest 
principles  of  reason  and  justice,  but  on  a  concurrence  of 
all  the  authorities  on  the  subject,  is  too  clear  to  admit 
of  a  doubt ;  and  were  the  case  of  less  importance,  I 
should  have  deemed  it  unnecessary  to  submit  any  other 
to  the  court.  I  lay  it  down  as  a  rule  that  can  not  be  con- 
troverted, that  even  if  aiders  and  abettors  in  treason  be 
considered  as  principals,  yet  that  their  guilt  is  derivative 
and  can  only  be  established  by  legal  proof,  that  the  per- 
son whose  acts  they  are  answerable  for,  have  committed 
treason  ;  that  the  only  legal  proof  is  a  record  of  the  con- 
viction of  those  persons;  that  without  such  proof,  no  tes- 
timony connecting  an  aider  or  abettor  with  those  persons 
is  admissible ;  and  of  course  if  there  be  no  such  record, 
the  prosecutors  fail  in  their  case,  and  can  not  proceed  with 
their  testimony. 

In  order,  therefore,  to  prove  the  guilt  of  an  aider  or 
abettor,  the  person  from  whom  his  guilt  is  derived  must 
be  shown  to  be  guilty  by  the  highest  evidence. 


c  TRIAL     OF    AARON    BURR. 

But  I  would  not  narrow  the  grounds  of  my  client's 
defense,  nor  do  I  mean  to  admit  that  others  who  are 
alleged  to  have  been  connected  with  him  in  the  imputed 
conspiracy  have  been  guilty,  when  I  insist  that  his  guilt, 
if  it  exist,  is  derived  from  theirs.  I  deny  that  any  of 
them  are  guilty.  This  is  an  act  of  justice  not  only 
to  him,  but  to  them.  Mr.  Blannerhassett,  Mr.  Tyler, 
and  Mr.  Smith,  as  individuals,  are  deservedly  re- 
spected ;  but  they  have  been  held  up  throughout  the 
United  States  and  in  this  court  as  arch  traitors.  I  mean 
no  reflection  on  the  gentlemen  on  the  other  side,  but 
judging  them  on  general  principles,  from  the  zeal  and 
perseverance  which  they  have  already  manifested,  they 
will  continue  strenuously  to  contend  that  those  injurious 
reports  are  well  founded,  and  that  their  guilt  is  unques- 
tionable. Mr.  Burr,  therefore,  considers  it  not  an  act  of 
justice  to  himself  only,  but  a  sacred  obligation  respecting 
them,  that  this  charge  should  be  inquired  into  ;  and,  if 
not  established,  that  those  unfounded  calumnies  should 
be  refuted.  Unless  the  record  of  the  condemnation  of 
some  persons  who  are  to  be  proved  to  be  traitors  be  pro- 
duced, and  the  connection  between  them  and  Mr.  Burr 
be  proved,  no  other  proof  is  admissible,  or  can  be  received. 
That  this  is  the  rule  in  all  felonies  is  beyond  all  question  ; 
the  accessory  never  can  be  convicted  until  the  principal 
be  found  guilty  ;  and  a  record  of  the  conviction  of  the 
principal  must  be  produced  on  the  trial  of  the  accessory. 
But  perhaps  it  will  be  observed  by.  the  gentlemen  on 
the  other  side,  that  in  treason  there  is  no  accessory,  and 
all  are  principals.  That  rule  is  general,  and  applies  to 
accessories  after  as  well  as  to  accessories  before  the  fact. 
I  contend  that  with  respect  to  accessories  after  the  fact, 
it  has  always  been  adjudged  and  considered  as  settled  law, 
except  by  Chancellor  Jefferies,  that  in  order  to  fix  guilt  on 
such  accessory,  the  principal  who  did  the  act  must  be 
convicted.  Lady  Lisle's  attainder  was  reversed  by  act 
of  parliament,  because  the  person  whom  she  had  received 
had  not  been  convicted.  She  was  a  lady  of  rank  and 
fortune,  and  tried,  convicted,  and  executed  (as  before 
stated)  for  entertaining,  concealing,  and  comforting  John 
Hicks,  knowing  him  to  be  a  false  traitor.  It  was  thought 
necessary  to  reverse  her  attainder  by  act  of  parliament. 


ARGUMENT    OF    MR,      WICKHAM.         641 

The  act  calls  her  trial  and  condemnation, "  an  irregular 
and  undue  prosecution,"  and  declares  that  the  "  verdict 
was  injuriously  extorted  by  the  violence,  menaces,  and 
other  illegal  practices  of  Judge  Jefferies;  "  but  it  partic- 
ularly mentions,  as  a  principal  ground  of  the  reversal, 
"  that  the  said  John  Hicks  (the  person  whom  she  had 
entertained)  was  not,  at  the  trial  of  the  said  Alicia  Lisle, 
attainted  or  convicted  of  any  such  crime."  Unless  it  had 
been  thought  that  the  law  was  settled, .that  an  accessory 
could  not  be  prosecuted  till  the  principal  had  been  con- 
victed, and  that  she  had  been  deprived  of  the  benefit  of 
this  law,  by  the  violence  and^cruelty  of  Jefferies,  the  act 
of  parliament  would  not  have  been  passed. 

In  several  other  prosecutions  before  Jefferies,  the  con- 
victions were  produced.  On  the  trial  of  William  Ring, 
an  accessory  after  the  fact,  for  receiving,  and  comforting, 
and  providing  meat,  drink,  and  lodging  for  Joseph  Kel- 
loway  and  Henry  Lawrence,  who  were  in  the  rebellion 
in  the  Duke  of  Monmouth's  army,  the  first  evidence 
produced  was  the  record  of  the  conviction  of  Kelloway 
and  Lawrence,  4  St.  Trials,  130-134;  and  on  the  trial 
of  John  Fernley  for  harboring  and  concealing  James 
Burton  who  had  been  outlawed  for  treason,  and  had  been 
in  Monmouth's  rebellion,  the  first  evidence  produced 
against  him  was  the  record  of  Burton's  outlawry,  Id.  p. 
137.  Now  as  aiders  after  the  fact  are  as  much  traitors 
as  those  before,  the  same  rule  applies  to  accessories  be- 
fore, w-ith  equal  force.  They  stand  on  precisely  the 
same  ground  ;  the  guilt  of  the  accused  is  consequential 
in  both  cases.  The  difference  of  time  does  not  affect 
the  question,  because  the  act  of  procurement  or  advice 
is  never  heard  of,  if  the  act  of  treason  be  not  committed  ; 
so  that  the  procurer  or  accessory  before  is  a  traitor  by 
relation,  as  much  as  a  receiver  after.  In  this  point  of 
view  there  is  no  distinction  between  them  ;  so  that  the 
guilt  of  the  procurer  or  accessory  is  a  consequence  of 
the  act ;  and  if  the  act  be  not  done,  he  is  not  guilty. 

But  it  is  unnecessary  to  rely  on  general  reasoning 
however  conclusive ;  express  authorities  on  the  subject 
may  be  produced. 

Lord  Hale,  in  the  first  volume  of  his  Pleas  of  the 
Crown,  states,  that  "  as  to  the  course  of  proceeding,  it 
i.— 41 


642  TRIAL     OF    AARON    BURR. 

hath  been,  and  indeed  ought  to  be  the  course,  that 
those  who  did  actually  commit  the  very  fact  of  treason 
should  be  first  tried,  before  those  that  are  principals  in 
the  second  degree,  because  otherwise  this  inconvenience 
might  follow,  viz.,  that  the  principals  in  the  second  de- 
gree might  be  convicted,  and  yet  the  principals  in  the 
first  degree  may  be  acquitted,  which  would  be  absurd." 
Apply  this  doctrine  to  the  present  case  :  Mr.  Burr  is 
charged  with  being  an  aider  before  the  fact,  to  Blanner- 
hassett,  who  being  charged  with  "  having  actually  com- 
mitted the  very  fact,"  must  be  first  tried.  His  guilt  is 
derivative  ;  and  you  must  prove  that  the  act  is  done  by 
the  conviction  of  the  principal,  before  you  are  let  into 
evidence  against  the  accessory.  In  confirmation  of  this 
doctrine  he  refers  to  Anderson's  Reports,  p.  109.  Som- 
erville's  or  Arden's  case.  Arden  and  wife,  and  Somer- 
ville  were  (as  before  stated)  indicted  for  treason,  in  com- 
passing the  death  of  the  queen  ;  the  two  former  as  pro- 
curing or  advising  the  act  to  be  done,  and  the  latter  as 
the  actor.  It  was  ruled  on  great  consideration  as  a 
general  principle,  "  that  the  jury  must  first  be  charged 
to  inquire  of  the  principal  offender,  and  if  they  found 
him  guilty,  then  to  inquire  of  the  receipt  ;  and  if  the 
principal  be  not  guilty  then  to  acquit  both ;  that  this 
was  the  law  where  the  offense  charged  was  'levying 
war;'  but  where  it  was  for  compassing  the  queen's 
death,  that  there  was  no  need  that  he  who  undertook  to 
do  the  act  should  be  first  tried  ;  for  the  movers  and  pro- 
curers are  guilty  of  compassing  the  'death,  though  he 
that  was  procured  should  never  assent  thereto." 

In  the  2d  volume,  p.  223,  the  learned  author  states, 
that  "  if  A  be  indicted  of  high  treason,  and  B  be  indicted 
for  receiving  or  comforting  him,  or  procuring  or  abetting 
(but  not  present),  here  it  is  true  that  they  are  all  princi- 
pals; but  inasmuch  as  B,  in  case  of  a  felony,  would  have 
been  but  accessory,  and  it  is  possible  that  A  may  be  ac- 
quitted of  the  fact,  it  seems  to  me  that  B  shall  not  be 
put  to  answer  of  the  receit  or  procurement  till  A  be  out- 
lawed, or  at  least  jointly  with  A,  and  in  this  case  the 
same  jury  may  be  charged  with  both,  and  their  charge 
shall  be  first  to  inquire  whether  A  were  guilty,  and  if  not, 
then  to  acquit  both  A  and  B  ;  and  if  A  be  found  guilty, 


ARGUMENT    OF    MR.     WICKHAM.        643 

then  that  they  inquire  of  B.  And  in  Somerville's  case 
(26  Eliz.),  mentioned  before,  the  inquiry  was  first  of  the 
principal  offender,  and  then  of  the  receiver  or  procurer, 
to  avoid  that  inconvenience  and  aweroust,  that  might 
happen  in  case  B  were  first  convicted  of  the  procurement 
and  receit,  and  yet  possibly  A  might  be  acquitted  of  the 
principal  fact. 

It  can  not  be  contended  that  by  indicting  B,  as  acces- 
sory or  procurer  singly,  the  prosecutor  can  evade  this 
rule  of  law,  which  is  founded  on  the  soundest  principles 
of  moral  right.  He  can  not  allege  that  the  defendant  has 
waived  it,  because  the  indictment  has  given  him  no  notice 
that  he  was  to  be  charged  as  principal  in  the  second  de- 
gree ;  there  being  no  reference  to  any  other  individual 
named  in  the  indictment. 

If,  then,  Lord  Hale  be  an  authority  on  this  point,  he  is 
conclusive.  He  says  that  aiders  and  procurers  before  the 
act,  and  receivers  after,  never  can  be  guilty  if  the  prin- 
cipal be  innocent.  In  order  to  prove  that  the  accessory 
is  guilty,  you  must  have  the  highest  evidence,  and  that 
is  not  conclusive,  for  he  may  controvert  the  guilt  of  the 
principal;  but  the  prosecutor  is  not  at  liberty  to  say  that 
he  is  guilty,  without  producing  the  record  of  his  conviction. 

But  this  question  also  proves,  that  I  was  right  on  a 
point  I  have  already  argued,  that  the  indictment  should 
charge  the  offense  specially  and  state  that  the  accused 
procured  the  act  of  treason,  which  was  committed  by  an- 
other, who  should  be  named  in  the  indictment. 

The  next  law  writer,  in  point  of  authority  to  Lord 
Hale,  and  one  certainly  no  otherwise  inferior  to  him,  than 
in  his  having  confined  his  disquisitions  to  particular 
branches  of  criminal  law,  is  Foster.  He  may  be  said  to 
be  of  equal  authority  with  Hale,  for  in  point  of  correct 
judgment  and  understanding,  none  is  superior  to  him. 
In  his  chapter  on  accomplices,  he  states  with  explicit 
approbation  the  opinion  of  Hale,  and  agrees  with  him  in 
every  essential  particular.  The  whole  of  the  first  section, 
from  p.  341  to  347,  is  apposite  to  the  present  question  ; 
and  as  his  thoughts  will  not  admit  abridgment,  I  will 
read  the  whole  to  the  court : 

"  It  is  well  known,  that  in  the  language  of  the  law  there 
are  no  accessories  in  high  treason ;  all  are  principals. 


644  TRIAL     OF    AARON    BURR. 

Every  instance  of  incitement,  aid,  or  protection,  which 
in  the  case  of  felony  will  render  a  man  an  accessory  be- 
fore or  after  the  fact,  in  the  case  of  high  treason,  whether 
it  be  treason  at  common  law  or  by  statute,  will  make  him 
a  principal  in  treason  ;  unless  the  case  be  otherwise  pro- 
vided for  by  the  statute  creating  the  offense,  or  where 
the  special  penning  of  the  act  leadeth  to  a  different  con- 
struction. 

"  This  rule  hath  long  obtained  and  will  not  now  be 
controverted  ;  but  I  think  it  a  matter  of  great  import- 
ance, that  the  rule  be  rightly  understood  :  I  mean  with 
those  limitations  which  sound  sense  and  common  equity 
require.  For  cases  have  frequently  happened,  where  an 
offender  in  the  final  issue  of  the  prosecution  maybe  con- 
sidered as  a  principal  in  treason  ;  and  yet,  during  the  in- 
termediate steps  towards  his  conviction,  he  ought,  from  a 
principle  of  natural  justice,  to  be  considered  merely  as  in 
the  nature  of  an  accessory  before  or  after  the  fact. 

"  For  instance,  A.  adviseth  B.  to  counterfeit  the  king's 
coin  or  seals,  cr  indeed  to  commit  any  of  the  offenses 
declared  treason  by  the  25  Edw.  3,  and  furnisheth  him 
with  means  for  that  purpose  (that  species  of  treason 
which  in  judgment  of  law  falleth  within  the  clause  of 
compassing  the  death  of  the  king,  queen,  or  prince  al- 
ways excepted).  If  B.  inconsequence  of  this  advice  and 
encouragement  doth  the  fact,  A.  is  a  principal  in  the 
treason  ;  for  such  advice  and  assistance  in  the  case  of 
felony  would  have  made  him  an  accessory  before  the 
fact  ;  and  in  high  treason  there  are  no  accessories  ;  all  are 
principals.  But  if  B.  forbeareth  to  commit  the  fact  to 
which  he  is  incited,  A.  can  not  be  a  traitor  merely  on  ac- 
count of  this  advice  and  encouragement,  though  his  be- 
havior hath  been  highly  criminal ;  for  bare  advice  or  in- 
citement, how  wicked  soever,  unless  in  the  cases  already 
excepted,  will  not  bring  a  man  within  the  statute,  where 
no  treason  hath  been  committed  in  consequence  of  it. 
So  in  the  case  of  assistance  or  protection  supposed  to  be 
given  to  a  traitor  after  the  fact,  the  party  knowingly  af- 
fording such  protection,  if  the  treason  hath  been  in  fact 
committed,  will  be  a  principal  in  treason  for  the  reasons 
already  mentioned.  But  if  a  person  lying  probably  un- 
der a  suspicion  of  guilt,  conscious  of  his  own  innocence, 


ARGUMENT    OF    MR.      WICK  HAM.         645 

should  think  it  advisable  to  withdraw,  and  patiently  to 
wait  the  issue  of  things  when  the  storm,  which  gathereth 
round  him,  shall  be  blown  over  ;  the  party  who  received 
and  harbored  him  during  his  retreat  can  not  be  a  traitor 
for  so  doing,  provided  the  conduct  of  his  friend  shall  ap- 
pear, upon  examination,  to  have  been  blameless.  Lord 
Chief  Justice  Coke,  who  while  he  was  in  the  service  of  the 
crown  seemeth  to  have  had  no  bowels  in  state  prosecu- 
tions, when  he  layeth  down  and  applieth  the  rule  I  have 
mentioned,  that  all  are  principals  in  treason,  plainly  go- 
eth  upon  a  supposition,  that  the  treason,  presumed  to 
have  been  procured,  was  afterwards  in  fact  committed, 
or  that  the  party  supposed  to  have  been  knowingly  re- 
ceived and  harbored  had  been  actually  guilty  of  hi^h 
treason.  It  would  have  been  absurd  to  the  last  degree, 
to  have  gone  upon  any  other  supposition  ;  for  it  can  not 
be  said  with  any  sort  of  propriety,  that  a  person  procured 
an  offense  to  be  committed,  which  in  truth  never  was 
committed  ;  or.  that  any  person  knowingly,  viz.,  with  a 
full  knowledge  of  a  treason  to  have  been  committed 
(that  I  take  to  be  the  legal  sense  of  the  term  knowingly), 
received  and  harbored  the  traitor,  if  such  treason  never 
had  been  committed  by  him. 

"  There  needeth  very  little  to  evince  the  truth  of  this 
observation,  more  than  to  give  a  proper  attention  to  the 
rule  already  mentioned,  that  every  act  which  in  the  case 
of  felony  will  render  a  man  an  accessory,  will  in  the  case 
of  treason  make  him  a  principal ;  especially  if  we  add  to 
it,  according  to  Lord  Hale,  that  nothing  short  of  such 
an  act  will.  What  circumstance,  therefore,  is  necessary 
to  render  a  man  an  accessory  in  felony?  Plainly  this 
above  all  others,  that  the  felony  charged  upon  the  prin- 
cipal hath  been  in  fact  committed  by  him.  For  which 
reason  no  verdict  can  pass  against  the  accessory,  till  the 
truth  of  this  single  fact  shall  have  been  legally  estab- 
lished either  by  the  conviction  of  the  principal,  if  he 
continueth  amenable  to  justice,  or  by  judgment  of  out- 
lawry, if  he  abscondeth  or  flieth  ;  unless  the  accessory 
chooseth  to  waive  the  benefit  of  the  law,  and  to  submit 
to  a  trial. 

"  This  rule  is  founded  in  good  sense  and  natural  jus- 
l;ce.  The  accessory  is  indeed  a  felon,  but  guilty  of  a 


646  TRIAL    OF    AARON    BURR. 

felony  of  a  different  kind  from  that  of  the  principal. 
It  is,  if  I  may  use  the  expression,  a  derivative  felony 
connected  with  and  arising  out  of  that  of  the  principal 
and  can  not  exist  without  it.  Whether  the  same  equit- 
able rule  is  by  parity  of  reason  to  be  extended  to  treason- 
able actions  of  a  similar  nature,  I  mean  to  such  as  are  of 
the  derivative  kind,  and  though  in  the  language  of  the  law 
styled  principal  treasons,  yet  partaking  of  the  nature  of 
mere  accessorial  offenses,  cometh  now  to  be  considered. 
This  is  the  point  of  importance  I  hinted  at  in  the  outset 
of  this  discourse.  For  if  in  prosecutions  for  treasons  of 
this  kind  the  same  rule  of  equity  be  observed  as  in  cases 
of  felony,  it  will  become  a  matter  of  very  small  impor- 
tance to  have  been  learning  by  what  special  technical 
expression  we  are  to  describe  the  offense. 

"  Lord  Chief-Justice  Hale  spendeth  a  whole  chapter 
on  this  point,  which  he  intitleth,  '  Concerning  princi- 
pals and  Accessories  in  High  Treason.'  And  though  in 
conformity  to  the  established  mode  of  speaking,  .he 
calleth  every  person  who  can  any  way  be  considered  as 
an  accomplice  in  treason  a  principal  in  it  ;  yet  when  he 
cometh  to  speak  of  the  course  and  order  to  be  observed 
in  the  prosecution  of  the  offenders,  he  considereth 
those  accomplices  whose  supposed  guilt  is  connected 
with  and  dependeth  upon  the  real  guilt  of  another  in  the 
light  of  mere  accessories  ;  and  stateth  a  few  cases  by  way 
of  illustration  and  proof.  A  person  is  committed  to 
prison  for  high  treason,  the  jailer  voluntarily  suffereth 
him  to  escape  ;  or  a  stranger  knowing  of  such  commit- 
ment breaketh  the  prison  and  setteth  him  at  large  ;  or 
knowingly  rescueth  him  after  an  arrest  and  before  he  is 
brought  to  prison.  In  all  these  cases  the  jailer  and 
the  person  breaking  prison  or  rescuing,  whom  he  in  a 
passage  I  shall  presently  cite,  calleth  a  kind  of  acces- 
sories, are  principals  in  treason,  if  the  party  imprisoned 
were  really  a  traitor.  If  he  were  not  so,  it  will  be  no 
treason  in  them ;  and  therefore  they  shall  not  be  ar- 
raigned till  the  principal  offender  be  convicted  ;  for  if 
he  be  acquitted  of  the  principal  offense  the  others  shall 
be  discharged. 

"  I  have  used  the  words  knowing  and  knowingly,  be- 
cause I  think  that  circumstance  is  a  necessary  ingredient 


ARGUMENT  OF  MR.    WICKHAM.          647 

in  the  case.  It  is  true  it  was  resolved  in  Benstead'scase 
cited  here  by  the  learned  author,  and  at  page  141,  but  I 
think,  not  \vith  entire  approbation  of  the  rule,  that  the 
party  breaking  prison  would  have  been  guilty  of  treason 
though  he  had  not  known  that  traitors  were  there.  I 
am  by  no  means  satisfied  with  this  opinion.  For  the 
single  authority  upon  which  this  point  is  said  by  Hale 
to  have  been  so  ruled,  doth  by  no  means  warrant  it. 
The  book  expressly  stateth  it,  that  the  party  did  know 
that  traitors  were  there.  And  Brooke  who  abridgeth 
the  case  is  expressed  to  the  same  purpose  :  sciant  que 
traitors  fueront  en  ceo.  And  Coke  citing  the  same  case 
layeth  a  great  stress  on  this  circumstance,  that  the  party 
knew  that  traitors  were  there,  and  conducted  them  out 
of  prison.  I  have  upon  another  occasion  taken  some 
notice  of  this  short  and  imperfect  report  of  Benstead's 
case,  and  observed  that  the  prosecution  against  him  ap- 
peareth  to  have  been  carried  on  with  uncommon  expe- 
dition, not  to  say  with  some  degree  of  precipitancy. 
And  probably  the  forcing  of  prison  doors,  as  many  were 
forced  during  the  tumult,  was  given  in  evidence  on  his 
trial,  among  other  outrages  of  the  night,  as  overt  acts 
of  levying  war,  the  species  of  treason  for  which  he  stood 
indicted. 

"The  same  rule  of  equity  and  natural  justice  the 
learned  judge  in  another  place  applieth  to  the  case  of 
felonious  escapes  and  rescues,  and  addeth,  If  the  prin- 
cipal offender  be  convicted  and  hath  his  clergy,  '  I  think 
the  jailer  or  rescuer  shall  never  be  put  to  answer  the 
escape  or  rescue,  as  the  accessory  where  the  principal 
hath  his  clergy  is  thereby  discharged,  for  the  rescuer 
and  officer  are  a  kind  of  accessories.'  He  calleth  them 
a  kind  of  accessories,  because  there  can  be  no  felonious 
escape  or  rescue  where  no  felony  had  been  previously 
committed.  But  in  strict  legal  propriety  they  are  not 
accessories  to  the  original  felony,  for  though  a  man 
should  be  committed  for  many  felonies,  yet  the  escape 
or  rescue  is  considered  as  one  single  felony,  and  is  so 
charged. 

"  With  regard  to  a  person  knowingly  receiving  and  har- 
boring a  traitor,  the  learned  judge  in  the  place  lately 
cited  argueth,  that  though  he  is  in  the  eye  of  the  law  a 


648  TRIAL     OF    AARON    BURR. 

principal  traitor  and  shall  not  be  said  to  be  an  accessory, 
yet  thus  much  he  partaketh  of  an  accessory,  his  indict- 
ment must  be  special  of  the  receipt  and  not  of  the  prin- 
cipal  treason.  If  he  is  indicted  by  a  several  indictment, 
he  shall  not  be  tried  till  the  principal  be  convicted  ;  if  in 
the  same  indictment  with  the  principal,  the  jury  must  be 
charged  to  inquire  first  of  the  principal  offender,  and  if 
they  find  him  guilty,  then  of  the  receipt ;  and  if  the 
principal  be  not  guilty,  then  to  acquit  both.  For  though 
in  the  eye  of  the  law  they  are  both  principals  in 
treason,  yet  in  truth  he  (the  receiver)  is  so  far  an  ac- 
cessory that  he  can  not  be  guilty  if  the  principal  be  inno- 
cent. 

"  In  tb;e  case  of  Mrs.  Lisle  whose  hard  fate  it  was  to 
fall  into  the  hands  of  perhaps  the  worst  judge  that  ever 
disgraced  Westminster  Hall,  no  regard  was  paid  to  this 
doctrine.  I  would  not  be  thought  to  mention  this  case 
as  an  authority  upon  which  a  doubt  can  at  this  day  be 
possibly  raised.  I  do  it  for  the  sake  of  what  happened 
afterwards,  which  I  take  to  be  an  authority  with  me. 
Her  attainder  was  afterwards  reversed  in  parliament  ;  and 
the  act  reciteth  among  other  hardships  of  her  case,  that 
she  was  by  an  irregular  and  undue  prosecution,  indicted 
for  entertaining  and  concealing  John  Hicks  a  false  trai- 
tor knowing  him  to  be  such  ;  though  the  said  Hicks  was 
not  at  the  time  of  the  trial  attainted  or  convicted  of  any 
such  crime. 

"  The  same  learned  author  in  other  parts. of  his  work 
argueth  to  the  purpose  for  which  I  have  already  cited 
him  ;  and  applieth  the  same  rule  of  equity  to  the  case 
of  a  person  indicted  for  contriving,  abetting,  aiding,  or 
consenting  to  treason,  which  happeneth  ne"ver  to  have 
been  carried  into  execution. 

"  But  here  we  must  distinguish,  though  the  learned 
judge  speaking  in  general  terms  apposite  to  his  present 
purpose,  doth  not.  For  with  regard  to  every  instance 
of  incitement,  consent,  approbation,  or  previous  abetment 
in  that  species  of  treason  which  falleth  under  the  branch 
of  the  statute  touching  the  compassing  of  the  death  of 
the  king,  queen,  or  prince,  every  such  treason  is  in  its  own 
nature,  independently  of  allother  circumstances  or  events, 
a  complete  overt  act.  of  compassing  ;  though  the  fact  or- 


ARGUMENT    OF    MR.      W1CKHAM.         649 

iginally  in  the  contemplation  of  the  parties  should  never 
be  effected  nor  so  much  as  attempted.  A.  inciteth  B.  to 
a  treason  of  this  kind  ;  B.  in  abhorrence  of  the  crime, 
and  from  a  just  sense  of  the  duty  which  every  man  oweth 
to  his  king  and  country,  and  which  every  good  man  in 
the  like  circumstance  will  pay,  maketh  a  discovery,  by 
means  whereof  A.  is  brought  to  justice.  This  incite- 
ment on  the  part  of  A.  is  a  complete  overt  act  of  treason 
within  this  branch  of  the  statute,  and  hath  no  sort  of 
connection  with,  or  necessary  dependence  upon  the  fu- 
ture behavior  of  B.  And  therefore  whatever  the  learned 
author  hath  advanced  in  general  terms  touching  fruitless 
ineffectual  advice  or  incitement  to  treasonable  practices, 
must  be  understood  of  such  treasons  only  as  do  not  fall 
within  this  branch  of  the  statute." 

In  page  341,  he  states  that  an  accomplice  in  treason, 
though  in  the  final  issue  he  may  be  considered  as  a 
principal,  yet  during  the  intermediate  steps  towards  con- 
viction, he  ought  to  be  considered  merely  as  in  the  nature 
of  an  accessory  before  or  after  the  fact.  In  page  346  he 
cites  Lord  Hale's  opinion  with  approbation,  except  that 
he  properly  distinguishes  between  treason,  in  compass- 
ing the  death  of  the  king,  and  every  other  species  of  trea- 
son ;  as  in  the  former  the  treason  is  complete  in  the  very 
act  of  conspiring.  Now  it  will  be  admitted  that  a  con- 
spiracy to  levy  war  is  not  in 'itself  an  act  of  treason. 
Judge  Foster  then,  as  well  as  Lord  Hale,  is  a  direct  au- 
thority in  favor  of  my  position. 

The  same  doctrine  is  laid  down  and  illustrated  by  a 
modern  writer,  who  certainly  is  not  of  himself  authority, 
though  he  merits  the  name  of  an  industrious  and  accu- 
rate compiler,  and  who,  from  causes  that  might  be  con- 
jectured, on  all  occasions,  seems  little  inclined  to  relax 
the  severity  of  the  law  on  the  subject  of  treason. 

Mr.  East,  in  his  treatise  on  Crown  Law,  chap.  2,  §  39, 
p.  100,  lays  down  with  great  clearness  the  same  rule 
of  law,  and  expressly  states,  that  proof  of  treason  of 
the  agent  can  only  be  established  by  his  conviction. 
I  shall  cite  what  he  saith  though  his  words  differ 
but  little  from  Hale  and  Foster.  "  But  further, 
with  respect  to  the  trial,  the  general  rule  that  all  are 
principals  in  treason,  must  be  understood  with  more  lim- 


650  TRIAL     OF    AARON    BURR. 

itation.     In  regard  to  all  acts  of  approbation,  incitement, 
advice,   or  procuring  towards   that   species   of  treason, 
which,  in  judgment  of  law,  falls  within  the  clause  of  com- 
passing the  king's  death,  or  that  of  the  queen  or  prince, 
there  is  no  doubt  but  that  the  party  may  be  tried  before 
the  person  who  acted  upon  such  incitement ;  because  the 
bare  advising  or  encouraging  to  such  actions  is  in  itself 
a  complete  overt  act  of  compassing  ;  and  it  is  totally  im- 
material whether  the  attempt  were    ever  made  or   not. 
The  case  of  Somerville  proves  no  more  than  this ;  though 
the  rule  is  there  laid  down  in  general  terms,  that  a  per- 
son aiding  or  procuring  a  treason  may  be  tried  before  the 
actor.     But  with  regard  to  all  other  treasons  within  the 
statute,  25  Edw.  3,  if  one  advise  or  encourage  another 
to  commit  them,  or  furnish  him  means  for  that  purpose, 
in  consequence  whereof  the  fact  is  committed,  the  adviser 
will  indeed  be  a  principal ;  for  such  advice  or  assistance 
would  have  made  him  an  accessory  before  the  fact  in 
felony :    but   if   the  other  forbore    to   commit  the   act 
thus  advised,  the  adviser  could  not  be  a  traitor  merely  on 
account    of  his  ineffectual  advice  and    encouragement ; 
though  his  conduct  would  be  highly  criminal :  for  it  can 
not  be  said  that  a  person  procured  an  offense  which  in 
truth  was  never  committed.     In  these  cases  therefore  the 
treason  is  of  a  derivative  nature,  and   depends   entirely 
upon  the  question,  whether  the  agent  have  or  have  not 
been  guilty  of  such  treason  ?  the  proof  of  which  can  only 
be  legally  established  by  his  conviction,  if  he  continue 
amenable  to  justice,  or  his  attainder  by  outlawry,  if  he 
abscond  ;  unless  the  accessory  choose  to  waive  the  bene- 
fit of  the  law,  and  submit  to  a  trial. 

"  The  same  rule  holds  in  case  of  assistance  or  protec- 
tion to  a  traitor  after  the  fact  in  all  cases,  or  of  permitting 
or  procuring  his  escape  from  custody.  The  party  know- 
ingly affording  such  protection  or  contributing  to  such 
escape,  if  the  treason  have  been  in  fact  committed,  will 
be  a  principal  traitor  ;  but  the  fact  of  the  principal's  guilt 
must  first  be  established,  and  notice  of  it  must  also  ap- 
pear to  have  been  received  by  him  who  may  be  called 
the  accessory  after.  For  it  can  not  be  said  that  a  person 
received  or  succored  a  traitor  knowingly,  that  is,  with  a 
knowledge  of  the  treason's  having  been  committed,  when 


ARGUMENT    OF    MR.     WICK  HAM.         651 

in  truth  either  no  such  treason  was  committed  by  him, 
or  the  receiver  was  altogether  ignorant  of  it." 

It  will  be  observed  that  he  too  considers  the  case  of  an 
accomplice  before  and  after  the  fact,  as  being  governed  in 
this  respect  precisely  by  the  same  rules. 

It  need  only  be  remarked,  that  he  considers  the  case 
of  Somerville  (Anderson,  109)  as  being  at  first  view  against 
the  position,  and  endeavors  to  explain  it.  Now  the  case 
of  Somerville  being  an  exception  from  the  general  rule 
and  so  statedj  according  to  the  maxim  exceptio  probat 
regulam,  is  directly  in  favor  of  "this  doctrine;  as  the  de- 
cision in  that  case  proceeded  solely  on  the  ground  of  the 
indictment  being  for  treason  in  compassing  the  death  of 
the  king,  which  being  in  itself  a  complete  act  of  treason, 
was  distinguishable  from  the  other  species  of  that  offense. 
The  words  are  "  car  le  procurement  est  un  compasse-- 
ment  et  imagination  del  mort  le  roy  quel  en  soy  mesme 
est  treason." 

The  prosecution  is  not  against  us  as  accessory  to  a 
crime  committed  by  another;  the  indictment  informs  us 
that  it  is  against  ourselves  not  for  an  accessorial  but  a 
principal  treason  committed  by  us  in  person  ;  and  we 
come  to  defend  ourselves  against  that  charge  only. 

The  only  doctrine  in  any  of  the  books  to  the  contrary, 
is  that  of  Sergeant  Hawkins  in  book  the  2d,  ch,  27.  sec.  2 
p.  439,  440  (Leach's  edition).  "  As  to  the  first  particular, 
in  what  offenses  there  can  be  no  accessories,  but  all  must 
be  principals,  if  any  way  guilty,  it  seems  to  have  been 
always  an  uncontroverted  maxim,  that  there  can  be  no 
accessories  in  high  treason  or  trespass.  Also  it  seems  to 
have  been  always  agreed,  that  whatsoever  will  make  a 
man  an  accessory  before  in  felony,  will  make  him  a  prin 
cipal  in  high  treason  and  trespass,  as  battery,  riot,  rout, 
forcible  entry,  and  even  in  forgery  and  petit  larceny. 
And  therefore  wherever  a  man  commands  another  to 
commit  a  trespass,  who  afterwards  commits  it  in  pursu- 
ance of  such  command,  he  seems  by  necessary  conse- 
quence to  be  as  guilty  of  it  as  if  he  had  done  it  himself. 
From  whence  it  follows,  that  being  in  judgment  of  law 
a  principal  offender,  he  may  be  tried  and  found  guilty 
before  any  trial  of  the  person  who  actually  did  the  fact." 
Now  it  is  observable  that  this  is  only  a  general  expres- 


652  TRIAL   OF  AARON  BURR. 

sion  of  the  general  rule,  that  he  goes  into  no  detail  and 
does  not  pretend  to  argue  on  the  question.  The  doc- 
trine is  admitted  to  be  correct  so  far  as  it  applies  to  trea- 
son in  compassing  the  death  of  the  king.  The  only  differ- 
ence between  him  and  the  authorities  I  have  quoted,  is 
that  he  does  not  distinguish  between  this  and  the  other 
kinds  of  treason  ;  but  he  does  not  enter  into  the  particu- 
lar question  whether  derivative  guilt  can  be  proved  other- 
wise than  by  the  conviction  of  the  principal  offender. 

But  if  he  were  in  direct  opposition  to  them,  he  does 
not  stand  on  such  high  ground  as  they  do  ;  the  names  of 
Lord  Hale  and  Justice  Foster  are  certainly  entitled  to 
much  higher  respect  than  his.  Sergeant  Hawkins,  though 
his  work  is  a  very  valuable  institute  of  criminal  law,  is 
not  considered  a  great  constitutional  lawyer. 

He  is  not  only  opposed  by  Hale  and  Foster,  but  even 
his  own  editor  corrects  this  dictum  in  the  later  editions. 
Mr.  Leach,  his  very  able  and  accurate  Commentator,  has 
a  note  on  this  very  passage,  in  which  he  corrects  the 
generality  of  the  expression,  and  confines  it  to  the  case 
of  treason  in  compassing  the  death  of  the  king.  The 
words  of  the  note  are  "  this  rule  requires  distinction  ;  in 
that  species  of  treason  touching  the  death  of  the  king,  &c., 
every  accessorial  agency  is,  independently  and  in  its  own 
nature,  a  complete  overt  act  of  compassing,  and  renders 
the  offender  guilty  though  the  fact  itself  should  never 
be  attempted.  But  in  every  other  species  of  treason,  the 
accessorial  offense  is  of  a  derivative  kind  ;  some  act  must 
be  done,  to  which  act  the  offender  must  be  accessory,  and 
out  of  which  his  guilt  must  spring  before  he  can  be  con- 
verted by  this  rule  of  law  into  a  principal  offender.  It 
seems,  therefore,  that  though  in  the  event  of  the  posecu- 
tion  such  an  offender  may  be  considered  as  a  principal,  yet, 
in  his  progress  towards  conviction,  he  ought,  from  a 
principle  of  natural  justice,  to  be  considered  merely  as 
in  the  nature  of  an  accessory,  before  or  after  the  fact  ;  and 
if  under  such  a  consideration  he  were  tried,  before  the 
person  who  actually  did  the  fact,  the  absurdity  might 
follow,  that  the  accessorial  agent  may  be  convicted,  and 
the  principal  who  did  the  act,  and  on  whose  guilt  the 
offense  of  the  accessory  must  alone  depend,  may  be  ac- 
quitted." 


ARGUMENT    OF    MR.     WICKHAM.         653 

The  authorities  therefore  all  correspond;  and,  supported 
as  they  are  by  the  strongest  reasons  drawn  from  the  rules 
of  common  sense  and  natural  justice,  place  the  position 
I  have  contended  for  beyond  the  reach  of  controversy. 

But  it  is  objected  that  no  adjudged  case  can  be  pro- 
duced in  support  of  it ;  it  is  a  sufficient  answer,  that 
there  has  never  been  an  attempt,  except  in  the  case  of 
Lady  Lisle,  to  charge  an  accessory  in  treason  before  the 
principal.  The  counsel  on  the  other  side  must  rely  on 
that  decision  of  Jefferies,  or  they  must  abandon  the  pros- 
ecution ;  and  even  that  case  is  conclusive  in  our  favor, 
for  judge  Jefferies's  sentence  was  annulled,  and  the  at- 
tainder reversed  by  act  of  parliament,  expressing  strong 
disapprobation  of  his  conduct. 

I  can  not  quit  this  point  without  remarking,  that  all 
the  authorities  go  upon  the  supposition  that  the  indict- 
ment must  be  special  ;  a  point  I  already  have  insisted 
upon.  It  is  barely  possible  that  an  objection  will  be  made 
which  may  be  thought  to  deserve  an  answer,  that  "  the 
accomplice  may  waive  the  benefit  of  the  law,  and  submit 
to  a  trial ;"  and  that  as  the  accused  has  done  so  in  the 
present  instance,  the  objection  now  comes  too  late.  A 
reference  to  the  authorities  and  a  moment's  consideration 
will  satisfy  the  court  that  there  can  be  no  force  in  this 
objection.  0 

The  indictment  gives  us  no  information  of  the  nature 
of  the  charge  ;  it  is  against  Mr.  Burr  himself,  who  had  no 
reason  to  doubt  that  it  was  meant  to  be  proved,  that  he 
in  person  committed  the  overt  act  of  treason  in  levying 
war  as  a  principal  in  the  first  degree.  The  charge,  that 
.  the  act  was  committed  by  him  in  conjuction  with  per- 
sons unknown,  excludes  the  idea  of  a  derivative  treason 
or  a  responsibility  for  the  act  of  any  particular  individual 
or  set  of  men. 

But  if  it  were  specially  charged,  and  the  persons, 
whose  acts  the  accused  was  to  answer  for,  were  named 
in  the  indictment,  with  every  necessary  description  of 
time,  place  and  circumstances,  the  party  going  to  trial 
according  to  the  course  of  the  court,  without  a  special 
prayer  to  be  tried  before  the  principal,  and  an  express 
waiver  of  his  right  entered  on  record,  could  not  be  con- 
cluded from  taking  this  exception.  The  words,  "  waive 


654  TRIAL     OF     AARON    BURR. 

the  benefit  of  the  law,"  mean  an  express  renunciation  of 
a  right,  and  none  such  certainly  has  been  made  in  the 
present  instance. 

But  admit  that  all  these  points  are  against  us,  still 
there  must  be  some  legal  proof  adduced  of  the  guilt  of 
the  principal  who  committed  the  act,  before  the  prisoner 
can  be  made  a  traitor  by  relation.  Admit  that  a  person 
may  be  generally  charged  as  present,  who  was  absent  ; 
that  the  record  of  the  conviction  of  the  principal  is  un- 
necessary ;  and  that  they  are  at  liberty  to  prove  the  act 
of  the  principal  by  mere  parol  testimony  ;  yet  before  Mr. 
Burr  can  be  connected  with  Blannerhassett,  they  must 
prove  an  overt  act  to  have  been  committed  by  Blanner- 
hassett, and  of  this  the  court  and  not  the  jury  must 
judge  ;  that  is,  the  court  must  judge  what  in  law  con- 
stitutes an  overt  act  of  treason,  though  the  jury  only  can 
decide  whether  such  an  overt  act  have  been  in  truth 
committed  or  not.  Admitting  the  correctness  of  the 
statement  of  the  only  witness  whose  testimony  bears 
upon  this  point,  Allbright  (who  is  at  one  time  in  jest,  at 
another  in  earnest),  yet  still  there  is  nothing  like  the  sem- 
blance of  an  act  of  war.  Admitting  further,  for  the  sake 
of  argument,  that  what  he  states  amounts  to  proof  of  an 
overt  act  of  war,  yet  still  he  is  a  solitary  witness  ;  and 
as  the  law  requires  two  witnesses  to  prove  the  same 
overt  act  of  war,  it  is  impossible  to  connect  us  with  him. 
Every  inference,  that  can  be  rationally  drawn  from  the 
facts  proved  by  this  single  witness,  maybe  drawn  by  the 
jury;  but  this  can  not  supersede  the  necessity  of  com- 
plying with  the  constitutional  requisition  of  proving  the 
overt  act  by  two  witnesses. 

According  to  the  universal  doctrine  of  all  authors  on 
this  subject,  the  overt  act  which  is  to  be  thus  proved, 
must  be  an  act  of  public  hostility  (not  a  mere  private 
act),  and  must  be  particularly  set  forth  in  the  indictment. 
The  principle  is  maintained  by  writers  and  confirmed  by 
the  form  of  the  indictments. 

I  East's  Crown  Law,  p.  116:  "In  every  indictment 
for  high  treason  upon  the  stat.  25  Ed.  3,  for  compassing 
the  death  of  the  king,  or  for  levying  war,  or  adhering  to 
his  enemies,  the  particular  species  of  treason  must  be 
charged  in  the  very  terms  of  the  statute,  being  a  declara- 


I 

ARGUMENT    OF    MR.      WICKHAM.        655 

tory  law,  as  the  substantial  offense,  and  then  some  overt 
act  must  be  laid,  as  the  means  made  use  of  to  effectuate 
the  traitorous  purpose."  "  The  overt  acts  so  laid  are  in 
truth  the  charge  to  which  the  prisoner  must  apply  his 
defense.  And  therefore  it  is  in  no  case  sufficient  to  al- 
lege, that  the  prisoner  compassed  the  king's  death,  or 
that  he  levied  war  against  him,  or  adhered  to  his  ene- 
mies ;  for  upon  a  charge  so  general  and  indefinite,  he 
can  not  know  what  acts  he  is  to  defend."  In  page  121, 
he  states,  however,  "  that  the  whole  detail  of  the  evidence 
need  not  be  set  forth."  "  The  rule,  prescribed  by  the 
statute  of  William,  '  that  no  evidence  shall  be  admitted 
or  given  of  an  overt  act  that  is  not  expressly  laid  in  the 
indictment,"  is  in  truth  no  more  the  common  law  itself 
directs  generally.  For  in  no  case  is  a  prisoner  bound  to 
answer  unprepared  for  every  action  of  his  life,  but  only 
to  that  which  is  the  subject  of  the  indictment  against 
him."  The  true  sense  of  the  clause  is,  "  that  no  overt 
act  amounting  to  a  distinct  independent  charge,  though 
falling  under  the  same  head  of  treason,  shall  be  admitted 
in  evidence,  unless  it  be  expressly  laid  in  the  indictment ; 
but  an  overt  act  may  be  given  in  evidence,  though  it  be 
not  expressly  laid  or  not  well  laid  in  the  indictment,  if 
it  amount  to  direct  proof  of  any  overt  act,  which  is  well 
laid.  Thus  in  the  case  of  Rockwood.(p.  122),  who  was 
indicted  for  compassing  King  William's  death,  two  of  the 
overt  acts  charged  were,  that  he  and  others  met  and  con- 
sulted upon  the  proper  means  for  waylaying  the  king, 
and  attacking  him  in  his  coach ;  and  also  that  they 
agreed  to  provide  forty  men  for  that  purpose.  Upon 
this  indictment  the  counsel  for  the  crown  were  allowed 
to  give  in  evidence  a  list  of  the  names  of  a  small  party 
who  were  to  join  in  the  attempt,  of  which  the  prisoner 
was  to  have  the  command,  with  his  own  name  at  the 
head  of  the  list  as  their  commander ;  for  though  not 
charged  in  the  indictment,  yet  it  amounted  to  a  direct 
proof  of  the  overt  acts  laid  ,viz.,  the  meeting  and  consult- 
ing together  how  to  kill  the  king,  and  then  agreeing  to 
provide  forty  men  for  the  purpose."  The  same  doctrine 
is  laid  down  in  p.  123,  but  in  that  page  it  is  stated  that 
"  if  the  overt  acts,  offered  in  evidence  and  not  laid  in  the 
indictment,  be  no  direct  proof  of  any  of  the  overt  acts 


656  TRIAL     OF    AARON    BURR. 

charged,  but  merely  go  to  strengthen  the  evidence  or 
suspicion  of  some  of  those  overt  acts  by  a  collateral  cir- 
cumstance, such  evidence  can  not  be  admitted,  notwith- 
standing the  opinion  of  Lord  Hale  to  the  contrary,  as 
in  the  case  of  Captain  Vaughan,  before  cited."  And  Fos- 
ter, in  p.  194,  states  the  same  doctrine,  that  the  overt  act 
must  be  laid  in  the  indictment :  "  In  every  indictment 
for  this  species  of  treason,  and  indeed  for  levying  war, 
or  adhering  to  the  king's  enemies,  an  overt  act  must  be 
alleged  and  proved.  For  the  overt  act  is  the  charge  to 
which  the  prisoner  must  apply  his  d'efense,  and  if  divers 
overt  acts  be  laid  and  but  one  proved,  it  will  be  suffi- 
cient." The  object  of  charging  the  overt  act  is  to  give 
the  accused  full  notice  to  come  prepared  to  answer  it. 

Here  Mr.  Wickham  observed,  that  as  the  usual  hour  of 
adjournment  was  now  past,  he  could  not  finish  his  argu- 
ment to-day,  but  wished  to  be  indulged  with  permission 
to  resume  it  to-morrow,  which  was  granted  ;  and  the 
court  adjourned. 

FRIDAY,  AUGUST  2ist,  1807. 

As  soon  as  the  court  met,  Mr.  Wickham  observed  that 
he  would  by  no  means  wish  to  take  up  the  time  of  the 
court  unnecessarily ;  but  that  it  might  not  be  improper 
briefly  to  advert  to  some  parts  of  his  argument  yester- 
day. He  then  proceeded  : — The  court  will  recollect  the 
several  points  which  I  endeavored  to  established  yester- 
day. The  first  was  founded  on  the  absence  of  the  accused 
from  the  scene  of  action,  at  the  time  of  committing  the 
act  charged  in  the  indictment ;  and  the  second  on  the 
necessity  of  proving  the  act  as  laid.  The  third  point 
was,  that  the  guilt  of  the  accused,  if  it  exist  at  all,  is  in 
its  nature  only  derivative,  and  can  not  be  proved  without 
first  producing  the  record  of  the  conviction  of  the  princi- 
pal. 

Hawkins,  in  his  Pleas  of  the  Crown,  ch.  29,  §  2,  p.  440, 
as  I  stated  before,  is  the  only  authority  which  says  that 
the  accessory  may  be  tried  before  the  principal ;  and  his 
commentator  Leach  denies  it,  in  his  note  subjoined. 

The  rules  of  law  require  that  the  prosecutor,  before 
he  can  convict  the  accessory,  must  produce  on  his  trial 


ARGUMENT    OF    MR.      WICK  HAM.         657 

the  record  of  the  conviction   of  the  principal.     Foster 
supposes  that  the  production  of  that  record  is   sufficient 
to  put  the  accused  on  his  defense.      But  he   admits  that 
it  is  no  more.     Hawkins  says  that  such  evidence  is  onlyi 
introductory  to  other  testimony,  which  is  necessary  to' 
connect  him  with  the  principal. 

The  court  will  observe  that  Foster  lays  down  the  doc- 
trine with  great  clearness,  that  the  conviction  of  the 
principal  is  necessary  to  be  produced  in  order  to  put  him 
on  his  defense ;  but  that  the  accessory  may  prove  that 
the  principal  is  innocent,  notwithstanding  the  production 
of  the  record  of  such  conviction.  In  pp.  364-365,  he 
says  that  "  the  accessory  may  be  brought  to  justice,  not- 
withstanding the  principal  has  been  admitted  to  the  clergy 
or  pardoned  ;  and  very  proper  was  this  provision.  For 
in  the  scale  of  sound  sense  and  substantial  justice,  the 
only  questions  in  which  the  accessory  can  have  any  con- 
cern, in  common  with  the  principal,  are,  whether  the  fel- 
ony were  committed,  and  committed  by  the  principal. 
These  facts  the  conviction  of  the  principal  hath  estab-  • 
lished  with  certainty,  at  least  sufficient  to  put  the  acces- 
sory to  his  answer.  And  therefore  in  whatever  manner 
the  principal  may  have  been  treated  after  his  conviction, 
seemeth  to  me  to  be  a  matter  perfectly  foreign  to  the 
question,  whether  or  when  the  accessory  shall  be  brought 
upon  his  trial."  Sec.  3,  "  At  a  conference  among  the 
judges  upon  the  case  of  M'Daniel  and  others  before  re- 
ported, a  general  question  was  moved  how  far,  and  in 
\vh.it  cases  the  accessory  may  avail  himself  of  the  insuffi- 
ciency of  the  evidence  in  point  of  fact,  or  of  the  incom- 
petency  of  witnesses  in  point  of  law,  produced  against 
the  principal,  and  in  what  cases  he  may  be  let  in  to  show 
that  the  facts  charged  and  proved  against  the  principal, 
do  not  in  judgment  of  law  amount  to  felony.  There  was 
in  that  case  no  occasion  to  enter  far  into  these  questions 
since  the  facts,  upon  which  the  point  of  law  then  under 
consideration  must  necessarily  turn,  were  all  found  by 
the  special  verdict."  P.  365,  ''  If  the  principal  and  ac- 
cessory are  joined  in  one  indictment  and  tried  together, 
which  I  conceive  to  be  the  most  eligible  course,  where 
both  are  answerable,  there  is  no  room  to  doubt  whether 
the  accessory  may  not  enter  into  the  full  defense  of  the 

L — 42 


658  TRIAL     OF    AARON    BURR 

principal,  and  avail  himself  of  every  matter  of  fact,  and 
every  point  of  law  tending  to  his  acquittal.  For  the  acces- 
sory is  in  this  case  to  be  considered  as  particeps  in  lite, 
and  this  sort  of  defense  necessarily  and  directly  tendeth 
to  his  own  acquittal.  When  the  accessory  is  brought  to 
his  trial,  after  the  conviction  of  the  principal,  it  is  not 
necessary  to  enter  into  a  detail  of  the  evidence  on  which 
the  conviction  was  founded  ;  nor  doth  the  indictment 
aver  that  the  principal  was  in  fact  guilty.  It  is  sufficient 
if  it  recitieth  with  proper  certainty  the  record  of  the  con- 
viction. This  is  evidence  against  the  accessory  sufficient 
to  put  him  upon  his  defense.  For  it  is  founded  on  a 
legal  presumption,  that  everything  in  the  former  pro- 
ceeding was  rightly  and  properly  transacted.  But  a  pre- 
sumption of  this  kind  must,  I  conceive,  give  way  to  facts 
manifestly  and  clearly  proved.  As  against  the  accessory 
the  conviction  of  the  principal  will  not  be  conclusive:  it 
is,  as  to  him,  res  inter  alias  acta.  And  therefore  if  it  shall 
come  out  in  evidence,  upon  the  trial  of  the  accessory,  as 
it  sometimes  hath,  and  frequently  may,  that  the  offense 
of  which  the  principal  was  convicted  did  not  amount  to 
felony  in  him,  or  not  to  that  species  of  felony  with  which 
he  was  charged,  the  accessory  may  avail  himself  of  this, 
and  ought  to  be  acquitted."  Hawkins,  p.  456,  b.  2,  c.  29, 
§  47,  says:  "  As  to  the  fourth  point,  whether  the  princi- 
pal and  accessory  may  be  both  tried  by  the  same  inquest, 
and  in  what  manner  they  are  to  be  tried.  It  seems  to  be 
settled  at  this  day,  that  if  the  principal  and  accessory 
appear  together  and  the  principal  plead  the  general  issue, 
the  accessory  shall  be  put  to  plead  also  ;  and  that  if  he 
likewise  plead  the  general  issue,  both  may  be  tried  by 
one  inquest ;  but  that  the  principal  must  be  first  con- 
victed ;  and  that  the  jury  shall  be  charged,  that  if  they 
find  the  principal  not  guilty,  they  shall  find  the  ac- 
cessory not  guilty.  But  it  seems  agreed  that  if  the  prin- 
cipal plead  a  plea  in  bar,  or  to  the  writ,  the  accessory 
shall  not  be  driven  to  answer,  till  such  plea  be  deter- 
mined." In  the  note  subjoined,  the  foregoing  authority 
of  Foster  and  Smith's  case,  O.  B.  1784,  p.  69,  are  referred 
to  ;  and  the  sentiment  repeated  that  the  production  of 
the  record  of  conviction  of  the  principal,  is  sufficient  to 
put  the  accessory  upon  his  defense. 


ARGUMENT    OF    MR.     WICKHAM.        659 

So  that  it  is  perfectly  clear,  from  'all  the  authorities, 
that  the  first  step  is  to  produce  the  record  of  the  con- 
viction of  the  principal  to  put  the  accessory  on  his  de- 
fense, though  it  is  not  conclusive  against  him. 

I  hope  to  be  excused  for  having  taken  up  the  time  of 
the  court  so  long  on  this  part  of  the  subject.  I  will  now 
proceed  to  make  some  remarks  on  another  point. 

If  it  be  possible  that  I  am  wrong  in  this  last  point,  as  well 
as  in  the  several  other  positions  I  have  endeavored  to 
support;  if  an  absentee  can  be  convicted  on  this  general 
form  of  indictment,  and  if  the  record  of  the  conviction  of  • 
the  principal  be  not  necessary,  and  parol  testimony  be 
admissible  to  'prove  the  acts  of  the  accused,  yet  still  I 
contend,  that  before  Mr.  Burr  can  be  put  on  his  defense 
or  testimony  exhibited  to  show  his  derivative  guilt,  there 
must  be  some  evidence  to  prove  to  the  court  that  Blan- 
nerhassett,  the  principal  offender,  is  guilty.  If  there  be 
no  evidence  against  Blannerhassett,  none  can  be  ad- 
mitted against  Mr.  Burr.  Let  us  suppose  that  there 
was  no  proof  whatever  of  the  guilt  of  Blannerhassett, 
would  it  be  competent  to  them  to  say  that  he  was  guilty, 
and  to  connect  Mr.  Burr  with  him  ?  to  say  that  his 
guilt  was  derivative,  when  there  was  no  original  source 
from  which  it  could  be  derived  ?  I  presume  that  the 
gentlemen  would  give  up  the  point  if  there  were  no  such 
proof.  It  would  be  the  same  thing  as  if  there  were  no 
evidence  at  all  against  the  accused,  for  it  would  have  no 
relation  to  the  charge  exhibited  against  him. 

If  there  were  evidence  of  a  merely  friendly  meeting,  it 
would  be  the  same  as  if  there  were  no  assemblage.  If 
they  were  to  give  evidence  that  Blannerhassett  and 
some  of  those  with  him  were  in  possession  of  arms, 
as  people  in  this  country  usually  are,  it  would  not  be 
sufficient  of  itself  to  prove  that  the  meeting  was  mil- 
itary. 

Arms  are  not  necessarily  military  weapons.  Rifles, 
shot  guns,  and  fowling  pieces  are  used  commonly  by  the 
people  of  this  country  in  hunting  and  for  domestic  pur- 
poses ;  they  are  generally  in  the  habit  of  pursuing  game. 
In  the  upper  country  every  man  has  a  gun  ;  a  majority 
of  the  people  have  guns  everywhere,  for  peaceful  pur- 
poses. Rifles  and  shot  guns  are  no  more  evidence  of 


660  TRIAL     OF    AARON    BURR. 

military  weapons  then  pistols  or  dirks  used  for  personal 
defense,  or  common  fowling  pieces  kept  for  the  amuse- 
ment of  taking  game.  It  is  lawful  for  every  man  in  this 
country  to  keep  such  weapons.  In  England  indeed 
every  man  is  not  qualified  to  keep  a  gun  ;  but  even  to 
those  who  have  not  that  privilege  the  possession  of  dirks 
and  pistols  is  not  unlawful,  Surely  their  possession  at 
that  island  of  such  arms  as  every  man  in  this  country  is 
legally  authorized  to  keep,  and  which  most  people  do 
keep,  can  be  no  more  evidence  of  a  military  project,  or 
an  intention  to  subvert  the  government,  then  if  they  had 
not  been  there  at  all.  What  is  the  rule  to  distinguish  in 
such  cases?  There  must  be  such  evidence  of  a  hostile 
assemblage  proved  to  the  court,  as  if  true  in  point  of 
fact- would  constitute  a  treasonable  assemblage. 

But  it  may  be  said  on  the  other  side,  that  if  the  court 
will  undertake  to  judge  in  this  case,  it  will  invade  the 
province  of  the  jury.  Sir,  it  will  not.  It  is  the  right  of 
the  jury  to  decide  on  the  weight  of  the  evidence.  They  are 
to  find  facts.  They  may  find  a  special  verdict,  and  if  all 
facts  be  inferred  by  them  that  can  be  properly  inferred 
from  the  evidence,  and  are  found  by  them,  the  court  can 
decide  on  their  finding.  If  they  do  not  find  facts  to 
that  extent,  the  court  is  bound  to  infer  whatever  may  be 
legally  inferred  from  their  finding.  The  overt  act  must 
be  particularly  set  forth  in  the  indictment.  It  is  clear 
on  principle,  and  supported  by  a  number  of  authorities, 
as  the  case  of  Deacon  and  several  others,  which  have 
been  referred  to,  that  after  the  overt  act  laid  is  once 
proved,  evidence  of  other  overt  acts  not  laid,  may  be  ad- 
duced if  they  be  direct  evidence  of  that  which  is  charged  ; 
but  it  is  a  perliminary  and  essential  point,  that  two  wit- 
nesses must  prove  the  overt  act. 

The  principle  for  which  I  am  contending  is  the  same 
in  civil  cases.  If  A  make  a  contract  with  C  by  B,  be- 
fore A  can  enforce  his  contract  against  C,  or  give  proof 
of  it  as  made  by  B,  he  must  prove  that  B  was  in  fact  his 
agent ;  and  then  he  can  go  on  and  prove  the  agreement, 
but  not  before  the  agency,  without  proving  which,  it 
would  be  irrelevant  and  improper  to  prove  the  agree- x 
ment.  The  court  would  require  the  production  of  this 
previous  proof  of  his  agency  ;  yet  the  court  does  not  de- 


ARGUMENT    OF    MR.      WICKHAM.         661 

cide  on  the  weight  of  such  evidence.  This  principle  is 
further  illustrated  by  the  right,  which  the  party  pos- 
sesses, to  require  a  special  verdict,  and  by  his  right  also 
to  demur  to  the  evidence,  and  draw  the  case  from  the 
jury  to  the  court.  But  he  subjects  himself  to  this  con- 
dition, that  every  inference  which  the  jury  might  draw, 
the  court  must  draw.  I  do  not  mean  to  say  that  the 
jury  may  wander  into  the  field  of  conjecture,  and  that 
the  court  may  do  so  also,  when  the  facts  are  thus  re- 
ferred to  it ;  but  that  of  every  inference  which  the  jury 
might  draw  according  to  sound  reason  and  law,  the  court 
must  necessarily  judge,  and  give  the  party  the  full  bene- 
fit of  it. 

Here  I  may  properly  refer  to  the  same  authority  in  Haw- 
kins, p.  456,  in  the  note  of  his  commentator,  where  after 
stating  the  necessity  of  producing  against  the  accessory 
the  record  of  the  conviction  of  the  principal,  he  adds, 
"  but  it  seems  that  some  additional  evidence  is  necessary 
for  that  purpose,  in  order  to  apply  and  connect  it  with 
the  case  of  a  prisoner  indicted  as  accessory  ;  for  a  bare 
unqualified  record  can  only  be  evidence  against  those 
who  are  parties  to  it." 

I  come  now  to  a  most  important  inquiry,  what  con- 
stitues  an  overt  act  of  "levying  war;"  which  must  be 
proved  before  the  guilt  of  treason  can  attach  to  the  prin- 
cipal. 

The  CHIEF  JUSTICE  asked  him  if  any  adjudged  case 
could  be  produced,  where  the  court  was  called  upon  to 
decide,  and  did  decide,  that  the  evidence  submitted  to 
the  jury  did  or  did  not  amount  to  proof  of  the  overt  act. 
Mr.  Hay  said  that  he  never  knew  the  attempt  made 
but  once,  before  Judge  Patterson,  which  was  unsuc- 
cessful. 

Mr.  Wickham. — The  overt  acts  must  be  such  as  if 
true — that  is,  in  reality  committed — constitute  treason.  I 
do  not  say  that  the  court  will  undertake  entirely  to  per- 
form what  is  the  province  of  the  jury,  and  proceed  to  in- 
quire whether  an  overt  act  have  been  proved  to  have  been 
committed,  but  that  it  is  the  right  and  duty  of  the  court  to 
instruct  the  jury  what  amounts  in  law  to  an  overt  act  of 
levying  war,  &c.  The  counsel  for  the  United  States  has 
undertaken  to  give  a  definition  to  the  jury  of  an  act  of 


662  TRIAL     OF    AARON    BURR. 

treason  in  "  levying  war."  The  position  taken  by  them- 
selves, as  stated  in  a  a  newspaper  now  in  my  hand  [here 
he  read  a  passage  from  it]  we  mean  to  controvert.  We 
have  a  right  to  oppose  gentlemen  on  the  ground  taken 
by  themselves.  I  deny  the  correctness  of  his  definition. 
When  we  differ  as  to  the  law,  the  court  must  decide 
between  us.  The  real  meaning  of  his  definition  is  that 
a  mere  assemblage  of  men,  without  force,  but  met  with 
treasonable  intention,  constitutes  a  complete  act  of  levy- 
ing war.  On  this  ground  the  most  peaceable  meeting, 
if  with  treasonable  designs,  might  be  said  to  levy  war. 

Mr.  Hay  denied  that  his  definition  was  accurately 
stated ;  he  meant  to  rely  on  the  definition  given  by  the 
supreme  court  of  the  United  States,  to  which  he  re- 
ferred. The  gentleman  did  not  understand  me,  said  Mr. 
Hay,  as  I  meant  to  be  understood,  and  as  this  must  be 
ovious,  he  ought  to  have  the  candor  to  admit  it.  The 
great  object  of  my  argument  was,  to  show  that  an  assem- 
blage of  men,  convened  for  the  purpose  of  effecting  by 
force  a  treasonable  object,  and  which  force  is  meant  to 
be  employed  before  their  dispersion,  is  an  overt  act  of 
levying  war  against  the  United  States.  I  appeal  to  you 
and  the  gentlemen  themselves,  if  this  were  not  the  sum 
and  substance  of  my  argument.  I  took  the  ground  that 
the  force  to  be  employed  was  meant  to  be  employed 
before  the  separation  of  the  party ;  because  if  it  were 
a  part  of  their  design  to  disperse  and  meet  at  another 
time  and  place,  for  the  purpose  of  carrying  the  design 
into  effect,  it  would  be  only  a  conspiracy  to  levy  war, 
and  not  an  act  of  levying  war  itself.  It  is  easy  to  at- 
tempt to  bring  an  argument  into  ridicule.  I  have  no 
objection  to  his  doing  so  ;  but  he  is  bound  to  show  the 
precise  words  which  I  did  express,  and  not  to  impute  to 
me  terms  which  I  never  used  or  arguments  which  I 
should  have  disdained  to  employ. 

Here  a  desultory  discussion  ensued  between  the  coun- 
sel on  this  point,  when  the  chief  justice  observed  that 
he  understood  four  distinct  propositions  to  be  stated  to 
the  court  (which  he  repeated),  every  one  of  which  was 
independent  of  every  other  ;  and  the  last  proposition  he 
considered  to  be,  that  if  the  record  of  the  conviction  of 
him  who  is  alleged  to  be  the  principal  were  not  necessary 


ARGUMENT    OF    MR.      WICKHAM.        663 

to  be  produced,  parol  evidence  was  admissible;  yet  the 
act  itself,  which  was  charged  to  have  been  committed, 
must  be  proved. 

Mr.  Wickham  expressed  his  regret,  that  he  was  misun- 
derstood ;  that  as  to  ridicule,  he  meant  no  such   thing. 
He  admitted  that  it  was  not  always,  though  it  was'some- 
times,  the  test  of  truth  ;  and  though  he  might  have  been 
justified  by  the   example  of  others  in  using  it,  he  had 
then  no  such  intention  ;  but  he  insisted  that  what  the 
gentleman  denied  was  substantially  what  he  contended 
for.     For,  said  Mr.  Wickham,  the  only  objection  which 
he  makes  to  my  construction  of  his  definition  is  this,  that 
I  did  not  state  that  the  purpose  was  to  be  effected  before 
the  separation  of  the  party  ;  that  is,  that  they  must  exe- 
cute it  on  the  spot,  which  involves  locality.     This  is  but 
a  small  deviation,  and  can  make  no   essential  difference 
in  the  offense;  but  how  is  it  possible  to  establish  by  sat- 
isfactory evidence,  that  a  number  of  men  intend  to  act 
before  any  separation  ?     But  he  relies  on  the  decision  of 
the    supreme  court;    and    he    dignifies  the  meeting   on 
Blannerhassett's  island  with  the  name  of  an  assemblage 
of  men  convened    to  effect  a  treasonable  purpose ;  and 
this  assemblage  without  force,  because  convened  with  an 
intention  to  use  force  thereafter,  he  says,  is  sufficient  to 
constitute  an  act  of  "  levying  war,"  within  the  true  mean- 
ing of  the  decision  of  the  supreme  court.     Though  some 
parts  of  the  opinion  of  the  supreme  court  may  be    ex- 
pressed too  vaguely,  yet  if  attentively  considered  through- 
out, it  can  not  justify  the  construction  which   that  gen- 
tleman thinks  proper  to    put  on   it.     It  may  indeed    be 
deemed  marvellous,  that  gentlemen  who  ought  to  com- 
prehend it  do  not.     Part  of  that  opinion  is  stated  and 
relied  on  ;  but  not  the  whole.     When  duly  and  fully  con- 
sidered it  will  be  found  to  be  what  has  always  been  con- 
sidered to  be  the  law  in  England.     Part  of  this  decision 
is  in  these  words:  "It  is  not  the  intention  of  the  court 
to  say,  that  no  individual  can  be  guilty  of  this  crime,  who 
has  not  appeared  in  arms  against   his  country  ;  on   the 
contrary,  if  the  war  be  actually  levied,  that  is,  if  a  body 
of  men  be  actually  assembled  for  the  purpose  of  effecting 
by  force   a  treasonable  purpose,  all  those  who  perform 
any  part,  however  minute,  or  however  remote  from  the 


664  TRIAL   OF  AARON  BURR. 

scene  of  action,  and  who  are  actually  leagued  in  the  gen- 
eral conspiracy,  are  to  be  considered  as  traitors.  But 
there  must  be  an  actual  assembling  of  men,  for  the  trea- 
sonable purpose  to  constitute  a  levying  of  war."  It  must 
be  evident  even  to  the  gentlemen  on  the  other  side,  that 
to  cornplete  the  definition  of  treason  to  be  found  in  this 
opinion,  the  whole  doctrine  therein  stated  should  be  ex- 
amined ;  yet  it  seems  as  if  he  thought  that  we  were  to 
look  no  further  than  this  clause  for  the  definition  of  trea- 
son. If  he  had  looked  at  the  next  paragraph,  it  would 
have  shown  him  the  contraiy :  "  To  complete  the  crime 
of  levying  war  against  the  United  States,  there  must  be 
an  actual  assemblage  of  men  for  the  purpose  of  executing 
a  treasonable  design.  In  the  case  now  before  the  court 
a  design  to  overturn  the  goverment  of  the  United  States 
at  New  Orleans,  by  force,  would  have  been  unquestion- 
ably a  design,  which  if  carried  into  execution,  would 
have  been,  treason.  And  the  assemblage  of  a  body  of 
men,  for  the  purpose  of  carrying  it  into  execution,  would 
amount  to  levying  of  war  against  the  United  States  ;  but 
no  conspiracy  for  this  object,  no  enlisting  of  men  to  effect 
it,  would  be  an  actual  levying  of  war.  In  conformity 
with  the  principles  now  laid  down,  have  been  the  decisions 
heretofore  made  by  the  judges  of  the  United  States." 

"  The  opinions  given  by  Judge  Patterson  and  Judge 
Iredell,  in  cases  before  them,  imply  an  actual  assembling 
of  men,  though  they  rather  designed  to  remark  on  the 
purpose  to  which  the  force  was  to  be  applied,  than  on 
the  nature  of  the  force  itself.  Their  opinions,  however, 
contemplate  the  actual  employment  of  force."  "  Judge 
Chase  in  the  trial  of  Fries  was  more  explicit.  He  stated 
the  opinion  of  the  court  to  be,  'that  if  a  body  of  people 
conspire  and  meditate  an  insurrection  to  resist  or  oppose 
the  execution  of  any  statute  of  the  United  States  by 
force,  they  are  only  guilty  of  a  high  misdemeanor;  but 
if  they  proceed  to  carry  such  intention  into  execution  by 
force,  that  they  are  guilty  of  the  treason  of  levying  war  ; 
and'the  quantum  of  the  force  employed  neither  lessens 
nor  increases  the  crime  ;  whether  by  one  hundred  or  one 
thousand  persons  is  wholly  immaterial.  The  court  are 
of  opinion  (continued  Judge  Chase,  on  that  occasion) 
that  a  combination  or  conspiracy  to  levy  war  against  the 


ARGUMENT    OF    MR.     W1CKHAM.        665 

United  States,  is  not  treason,  unless  combined  with  an 
attempt  to  carry  such  combination  or  conspiracy  into 
execution  ;  some  actual  force  or  violence  must  be  used 
in  pursuance  of  such  design  to  levy  war,  but  it  is  alto- 
gether immaterial  whether  the  force  used  is  sufficient  to 
effectuate  the  object  ;  any  force,  connected  with  the  in- 
tention, will  constitute  the  crime  of  levying  war.'  '  The 
opinions  of  these  three  judges  are  stated  to  be  law  ;  and 
all  three  declare  some  force  to  be  actually  necessary.  Is 
it  not  very  plain  from  all  these  parts  taken  together,  that 
wherever  the  supreme  court  speak  of  any  body  of  men 
assembled  for  the  purpose  of  effecting  by  force  a  treason- 
able purpose,  they  mean  that  the  force  of  which  they 
speak  must  be  actually* used  in  order  to  make  it  treason  ? 
Is  not  one  part  of  their  opinion  to  be  construed  with  and 
explained  by  another  ?  In  construing  it,  are  gentlemen 
at  liberty  to  take  one  part  and  reject  another  which 
qualifies  it  ? 

I  should  think  no  other  argument  would  be  necessary 
to  show  this ;  but  I  will  refer  to  your  own  opinion  on  the 
commitment  of  Mr.  Burr  ;  you  said  on  that  occasion,  that 
"  an  intention  to  commit  treason  is  an  offense  entirely 
distinct  from  the  actual  commission  of  that  crime.  War 
can  only  be  levied  by  the  employment  of  actual  force  ; 
troops  must  be  embodied,  men  must  be  assembled  in 
order  to  levy  war."  Again  you  stated,  that  "  to  consti- 
tute this  crime,  troops  must  be  embodied,  men  must  be 
actually  assembled ;  and  these  are  facts  which  can  not 
remain  invisible.  Treason  may  be  machinated  in  secret, 
but  it  can  be  perpetrated  only  in  open  day,  and  in  the 
eye  of  the  world.  Testimony  of  a  fact,  which  in  its  own 
nature  is  so  notorious,  ought  to  be  unequivocal." 

The  act  of  levying  war  must  therefore  be  an  act  of 
force  and  of  public  notoriety  exhibited  before  the  world. 
Compare  your  own  opinion  with  the  picture  which  the 
gentleman  has  chosen  to  draw,  and  see  how  dissimilar 
they  are. 

We  are  then  told  of  the  opinion  and  admissions  of 
Fries'  counsel  on  his  trial  in  Pennsylvania ;  and  an  eulogism 
is  passed  on  that  counsel  (Mr.  Lewis)  on  account  of  that 
supposed  opinion.  The  opinion  of  counsel  is  no  author- 
ity, however  unequivocally  expressed.  But  if  we  are  to 


066  TRIAL     OF    AARON    BURR. 

refer  to  the  opinion  of  counsel,  let  us  refer  in  like  man- 
ner to  that  of  the  counsel  for  the  prosecution.  Mr. 
Ravvle  is  equally  as  respectable  as  Mr.  Lewis.  In  Fries' 
trial,  p.  179,  Mr.  Rawle  conceived  himself  authorized 
upon  good  authority  to  say,  "  that  levying  war  did  not 
only  consist  in  open,  manifest,  and  avowed  rebellion 
against  the  government,  with  a  design  of  overthrowing 
the  constitution  ;  but  it  may  consist  in  assembling  to- 
gether in  numbers  and  by  actual  force,  or  by  terror, 
opposing  any  particular  law  or  laws.  There  can  be  no 
distinction  as  to  the  kind  or  nature  of  the  laws,  or  the 
particular  object  for  which  the  law  was  passed,  since  all 
are  alike  the  acts  of  the  legislature  who  are  sent  by  the 
people  at  large  to  express  their  will." 

"  Force  need  not  be  used  to  manifest  this  spirit  of  re- 
bellion ;  nor  is  it  necessary  that  the  attempt  should  have 
been  successful,  to  constitute  the  crime.  The  endeavor 
by  intimidation  to  do  the  act,  whether  it  be  accomplished 
or  not,  amounts  to  treason,  provided  the  object  of  those 
concerned  in  the  transaction  is  of  a  general  nature,  and 
not  applied  to  a  special  or  private  purpose."  The 
attempt  to  effect  the  purpose  by  terror  is  sufficient.  I  will 
refer  to  the  case  put  by  the  gentleman  himself  by  way 
of  illustration,  that  if  an  assemblage  of  men  were  to  march 
unarmed  into  this  town  for  the  purpose  of  attacking  the 
capitol,  and  in  such  immense  numbers  as  to  render  all 
resistance  vain  and  ineffectual,  and  no  resistance  were 
therefore  made,  their  object  would  be  effected  by  terror 
and  imaginary  alarm.  Their  numbers,  in  that  case,  would 
supply  the  want  of  arms.  The  only  difference  is  between 
actual  and  potential  force ;  and  in  that  case,  there  would 
be  potential  force  sufficient  to  effect  their  object. 

In  Fries'  case,  he  came  forward  with  an  armed  multi- 
tude. He  employed  force  as  well  as  terror,  to  break 
prisons,  to  rescue  prisoners,  and  to  oppose  the  operation 
of  the  laws  of  his  country. 

The  opinion  of  Mr.  Sitgreaves,  the  other  respectable 
counsel  of  the  United  States,  is  still  more  explicit  on  this 
subject.  In  p.  19  of  that  trial,  he  says,  that  "  if  the  ar- 
rangements are  made,  and  the  numbers  of  armed  men 
actually  appear,  so  as  to  procure  the  object  which  they 
have  in  view,  by  intimidation  as  well  as  by  actual  force, 


ARGUMENT    OF    MR.     WICK  HAM.        66  7 

that  will  constitute  the  offense."  In  p.  20,  he  says:  "  It 
must  be  war  waged  against  the  United  States.  This  is 
an  important  distinction.  A  large  assemblage  of  people 
may  come  together,  in  whatever  numbers,  however  they 
may  be  armed  or  arrayed,  or  whatever  degree  of  violence 
they  may  commit,  yet  that  alone  would  not  constitute 
treason  ;  the  treason  must  be  known ;  it  must  be  for  a 
public  and  not  a  private  revenge;  it  must  be  avowedly 
levying  war  against  the  United  States.  If  people  assem- 
ble in  this  hostile  manner,  only  to  gratify  revenge,  or  any 
other  purpose  independent  of  war  against  the  United 
States,  it  will  only  amount  to  a  riot  ;  but  if  it  is  an  object 
in  which  the  persons  have  no  particular  interest,  this  con- 
stitutes the  offense  of  treason."  With  respect  to  the 
definition  of  Foster,  I  will  not  take  up  the  time  of  the 
court  by  detailing  it  fully,  or  repeating  what  may  have 
been  already  quoted.  Suffice  it  to  say,  that  he  considers 
it  a  fixed  principle,  that  there  must  be  actual  violence  or 
hostility,  and  that  the  overt  acts  must  be  public  acts. 
In  p.  2 II,  after  mentioning  several  specific  instances  of 
treasonable  acts,  he  adds,  that  "  all  risings  to  effect  these 
innovations  of  a  public  and  general  concern  by  an  armed 
force,  are  in  construction  of  law,  high  treason,  within  the 
clause  of  levying  war  ;  "  and  he  gives  one  principal  rea- 
son, "  that  they  have  a  direct  tendency  to  dissolve  all 
the  bonds  of  society  and  to  destroy  all  property  and  all 
government  too,  by  numbers  and  an  armed  force."  And 
likewise  that  "  insurrections  for  redressing  national  griev- 
ances," "  or  the  reformation  of  real  or  imaginary  evils 
of  a  public  nature,  and  in  which  the  insurgents  have  no 
special  interest ;  risings  to  effect  these  ends  by  force  and 
numbers  are  by  construction  of  law  within  the  clause  of 
levying  war."  In  short,  all  the  English  precedents  show 
that  the  overt  acts  are  cases  of  actual  hostility  of  a  public 
nature. 

Vaughan's  case  in  5  State  Trials,  p.  37,  may  be  consi- 
dered as  the  strongest  on  this  point.  He  had  a  commis- 
sion from  the  French  king,  to  cruise  in  the  vessel  or  barge 
called  the  Loyal  Glencarty,  against  the  subjects  of  Eng- 
land. He  commanded  this  vessel  under  French  colors, 
and  met  an  English  ship  of  superior  force,  and  struck  his 
colors  without  a  battle  or  making  any  resistance.  The 


668  TRIAL     OF    AARON    BURR. 

court  will  observe,  that  in  the  indictment  against  Vaughan 
there  were  two  counts,  one  for  levying  war,  and  the  other 
for  adhering  to  the  king's  enemies  and  aiding  and  assist- 
ing them.  Mr.  Phipps,  the  prisoner's  counsel,  objected 
that  there  was  no  overt  act  of  war  proved  against  him, 
because  there  was  no  act  of  hostility.  But  this  objection 
was  overruled,  and  he  was  found  guilty  of  adhering  to 
the  king's  enemies,  and  aiding  and  assisting  them,  and  it 
was  determined  that  actual  war  must  be  proved  under  an 
indictment  for  levying  war.  The  opinion  of  the  chief 
justice  was  as  follows  :  "  When  men  form  themselves  into  a 
body,  and  march  rank  and  file,  with  weapons  offensive  and 
defensive,  this  is  levying  war  with  open  force,  if  the  design 
be  public."  "  When  a  ship  is  armed  with  guns,  &c.,  and 
doth  appear  on  the  coast  watching  an  opportunity  to 
burn  the  king's  ships  in  the  harbor,  and  their  design 
known,  and  one  goes  to  them,  and  aids  and  assists  them, 
this  is  an  adhering  to  the  king's  enemies.  Here  are  two 
indictments,  one  for  levying  war  and  the  other  for  adher- 
ing to  the  king's  enemies  ;  but  the  adhering  to  the  king's 
enemies  is  principally  insisted  on  :  and  there  must  be  an 
actual  war  proved  upon  the  person  indicted  in  the  one, 
yet  not  to  be  proved  in  the  other  case."  The  cpurt 
observed  that  the  prisoner's  counsel  would  make  no 
act  to  be  "  aiding  and  assisting,"  but  fighting,  which  was 
wrong  ;  that  they  were  armed  and  had  surrounded  the 
ship  twice,  and  nothing  prevented  his  making  an  attack, 
but  the  superiority  of  the  ship  by  which  he  was  taken. 
They  were  afraid  to  proceed  on  the  count  which  was 
charged  the  levying  war,  because  public  war  and  open 
hostility  must  be  proved  to  support  it ;  they  went  there- 
fore on  the  other,  for  adhering  to,  and  aiding  the  king's 
enemies. 

On  further  consideration,  I  admit  that  perhaps  the 
word  "  public  "  need  not  be  inserted  "in  the  indictment. 
In  the  English  precedents,  and  also  in  the  first  indict- 
ment against  John  Fries,  this  word  "  public  "  is  used  ;  but 
I  find  that  in  the  subsequent  indictment  against  Fries,  it  is 
omitted.  I  should  only  rely  on  the  general  usage  being 
an  evidence  of  the  law. 

But  what  did  the  gentleman  say  in  defining  the  "  levy- 
ing of  war  "  ?  that  there  is  no  necessity  for  arms,  nor 


ARGUMENT    OF    MR.     WICK  HAM.        669 

the  employment  of  force  !  that  there  is  no  necessity  even 
for  potential  force  to  effect  the  intended  purpose  by  ter- 
ror !  that  there  is  no  necessity  for  the  act  to  be  public ! 
that  an  overt  act  of  treason  may  be  committed  without 
arms,  without  force,  either  actual  or  potential!  If  this 
were  law,  there  would  be  no  safety.  We  know,  however, 
that  a  man  may  conceive  a  criminal  intention,  but  that 
the  law  does  not  punish  it,  unless  carried  into  execution. 
But  the  gentlemen  takes  away  the  "  locus  pcenitentice" 
Men  might  be  misled  from  their  duty  as  citizens,  and 
induced  to  agree  to  resist  the  government  and  levy  war, 
but  before  they  proceeded  to  action  might  repent,  from 
prudential  or  patriotic  motives  ;  but  according  to  the 
doctrine  of  the  gentlemen  on  the  other  side,  they  could 
not  retract.  The  intention  once  formed,  though  without 
reflection,  and  though  soon  followed,  after  deliberation,  by 
sincere  repentance,  would  be  as  severely  punishable  as  the 
actual  execution  of  the  treasonable  design.  A  man  who 
had  agreed  to  join  in  a  treasonable  project,  but  repented 
and  never  joined  the  party,  would  be  punishable  as  highly 
as  the  traitors  who  actually  perpetrated  the  crime.  This 
doctrine  can  never  be  correct. 

He  introduces  another  point  to  which  I  slightly  ad- 
verted before.  After  having  taken  away  every  induce- 
ment to  repentance  and  reformation,  he  rests  the  inno- 
cence or  criminality  of  the  accused  on  their  intention-to 
separate  or  not,  before  the  accomplishment  of  their 
purpose.  What  would  the  gentleman  call  separation  ? 
Perhaps  no  two  individuals  have  the  same  idea  on  this 
subject.  Such  an  indefinite,  vague,  indeterminate  idea  of 
what  would  constitute  guilt  opens  a  door  to  constructive 
treason,  and  is  dangerous  in  the  extreme.  This  defini- 
tion fits  no  case  but  this  case,  and  must  have  been  inten- 
ded to  fit  it ;  it  is  the  more  alarming,  as  it  may  put  the 
safety  of  any  individual  in  the  power  of  the  government ; 
but  I  hope  it  will  be  disclaimed.  It  has  never  been  heard 
of  before,  and  I  trust  in  God  it  never  will  be  heard  of 
in  this  country  again. 

I  will  now  make  some  few  observations  on  the  testi- 
mony, from  which  it  will  be  seen  that  there  was  no  hos- 
tility of  any  kind  committed.  In  the  evidence  of  the 
first  witness,  who  was  examined  as  to  the  transactions  on 


670  TRIAL     OF    AARON    BURR. 

the  island  (Peter  Taylor,  the  gardener),  there  is  not  one 
expression  that  gives  the  remotest  idea  of  a  treasonable 
assemblage.  He  saw  a  few  men  and  four  or  five  rifles, 
which  were  perfectly  innocent;  but  what  is  more  won- 
derful, he  saw  some  bullets  run  !  There  is  no  impropriety 
in  running  bullets,  if  the  object  be  not  criminal ;  the 
rifles  were  of  no  sort  of  service  without  the  bullets;  but 
they  had  a  little  powder  !  Of  what  use  would  their  bul- 
lets be  without  powder  ?  The  quantity  of  each  was  so 
very  limited  as  to  answer  no  other  than  innocent  pur- 
poses. He  saw  no  military  array  or  parade ;  he  saw  no 
improper  act,  nothing  that  could  be  justly  construed  to 
be  criminal  or  unlawful  in  their  conduct.  He  says  that 
he  saw  Mr.  Woodbridge  in  the  night  down  with  Blan- 
nerhassett's  party  at  the  landing;  but  Mr.  Woodbridge 
denies  it.  What  does  another  of  their  own  witnesses, 
Mr.  Love,  say?  He  says  they  were  frightened  at  the 
proclamation  ;  but  he  saw  no  military  parade  whatever, 
nothing  like  hostility  ;  that  they  were  afraid  of  the  mob 
who  were  about  to  pull  down  Blannerhassett's  house. 
Has  the  government  a  right  to  pull  down  houses? 

"  But  they  were  prepared  to  defend  themselves."  Had 
they  not  a  right  to  do  so  ?  As  the  witness  said,  if  a  man 
struck  him  a  blow  on  the  face,  he  had  a  right  to  return 
it.  Mr.  Woodbridge  saw  no  military  array  or  hostility, 
nothing  criminal,  turbulent,  tumultuous,  or  disorderly  in 
their  conduct ;  he  saw  nothing  more  than  was  peaceful, 
and  ordinary,  and  natural  on  such  an  occasion. 

Here  Mr.  Hay  expressed  a  hope  that  the  court  would 
excuse  him  for  interrupting  the  gentleman.  He  asked 
if  it  were  not  absurd  to  argue  on  one  half  of  the  testi- 
mony? He  declared  that  they  had  several  other  wit- 
nesses who  would  prove  the  character  of  the  acts  on  the 
island ;  and  that  the  intention  of  the  party  was  to 
take  possession  of  New  Orleans  ;  that  he  never  knew  a 
criminal  prosecution  interrupted  in  this  way ;  only  one 
half  of  the  evidence  commented  on  to  the  court,  before 
the  other  half  was  submitted  to  the  jury. 

Here  a  desultory  discussion  took  place.  Mr.  Burr 
and  his  counsel  contended,  that  they  had  distinctly  under- 
stood that  the  counsel  for  the  prosecution  had  gone 
through  or  produced  all  their  testimony  relative  to  what 


ARGUMENT    OF    MR.     WICKHAM.         671 

was  deemed  the  overt  act,  or  the  transaction  on  Blanner- 
hassett's  island  ;  that  they  had  called  on  them  to  adduce 
more  evidence  on  that  point  if  they  could  ;  that  they  had 
answered  that  they  had  only  one  or  two  more  witnesses 
whose  evidence  was  to  the  same  effect  as  that  of  the 
others  who  had  already  been  examined  ;  and  that  as 
they  happened  to  be  then  absent,  it  was  clearly  under- 
stood they  were  at  liberty  to  proceed  to  state  their  pro- 
positions to  the  court ;  and  Mr.  Burr  added,  that  it  was 
his  desire  that  everything  relative  to  what  they  called 
war  should  be  first  proved  ;  that  he  had  permitted  many 
things  which  were  extremely  improper  to  be  brought 
forward,  without  objecting  to  them,  as  he  wished  every- 
thing that  regarded  that  point  to  be  proved ;  that  he 
urged  them  to  prove  an  overt  act,  but  that  it  could  not 
be  proved.  He  desired  to  avail  himself  of  the  opportu- 
nity of  showing  the  defect  of  evidence  and  the  futility  of 
the 'prosecution  ;  and  that  it  was  expressly  declared  by 
the  counsel  for  the  prosecution,  that  they  had  examined 
all  their  witnesses,  except  as  before  stated. 

Mr.  Hay  insisted  that  gentlemen  were  mistaken  in 
their  supposition  that  there  was  to  be  no  other  evidence  ; 
that  he  had  expressly  told  the  court  and  them,  that  it 
was  not  admitted  that  there  was  no  other  evidence  oft 
this  subject  ;  that  they  had  no  right  to  say  that  it  was 
admitted,  or  to  assume  as  a  fact  that  there  was  no  other 
evidence;  that  he  had  other  testimony,  and  wished  to 
prove  the  connection  between  those  who  were  on  the 
island,  and  those  who  went  down  to  Cumberland  river,  and 
were,  proceeding  down  the  Mississippi  under  the  com- 
mand of  the  accused  ;  that  for  the  purpose  of  more  clear- 
ly showing  this  connection,  all  the  testimony  bearing 
upon  the  subject  should  be  examined  and  considered 
together  ;  that  he  could  not  discern  what  could  warrant 
such  an  extraordinary  motion  as  this  was,  to  exclude  evi- 
dence, on  a  supposition  that  there  was  no  other  testimony 
on  a  particular  point  in  the  cause. 

Chief  Justice. — I  understood,  and  it  was  certainly  so 
expressed,  that  the  testimony  relating  to  the  transactions 
on  Blannerhassett's  island  had  been  gone  through,  but 
that  there  was  other  evidence  with  respect  to  the  inten- 
tion, to  show  the  character  and  nature  of  the  assemblage  ; 


672  TRIAL   OF  AARON  BURR. 

and  it  is  contended  on  the  other  side  that  you  have  no 
right  to  introduce  such  other  evidence.  I  do  not  con- 
ceive the  motion  to  be  irregular.  So  far  as  it  is  a  per- 
sonal inconvenience  to  hear  a  lengthy  discussion,  I  re- 
gret it,  for  the  sake  of  others  who  are  affected  by  it ; 
but  the  court  feels  it  to  be  a  duty  which  it  must  patient- 
ly and  cheerfully  perform.  Every  legal  proposition 
which  is  made  the  court  is  bound  to  listen  to,  as  well  as 
to  reflect  on  and  determine  according  to  its  best  skill  and 
judgment.  You  mean  to  connect  the  transactions  on 
Blannerhassett's  island  with  evidence  of  extrinsic  cir- 
cumstances drawn  from  other  sources.  But  I  understood 
you  to  state  most  explicitly,  that  as  far  as  related  to  the 
character  of  the  transactions  on  Blannerhassett's  island, 
you  had  examined  all  your  witnesses.  I  do  not  under- 
take to  say  that  it  is  proper  or  improper  to  admit  this 
other  evidence  which  is  sought  to  be  excluded.  The 
counsel  for  the  defense  say,  that  having  completed  your 
evidence  as  to  what  happened  on  the  island,  you  can  not 
connect  that  testimony  against  the  accused  with  proof 
of  opinions  and  intentions,  and  such  extrinsic  circum- 
stances happening  out  of  the  district  as  you  desire  to 
adduce.  Their  arguments  may  be  very  unsound,  and  if 
you  think  so,  you  have  a  right  to  show  it ;  but  to  say 
that  they  have  no  right  to  advance  them,  is  more  than 
the  court  can  undertake. 

Mr.  Hay  said  that  his  object  was  to  show  what  his  judg- 
ment deemed  the  impropriety  of  the  course  which  gen- 
tlemen had  adopted  ;  that  he  had  not  been  distinctly  un- 
derstood ;  but  that  as  he  did  not  wish  to  take  up  the 
time  of  the  court,  he  had  no  objection  to  their  going  on 
with  their  observations. 

Mr.  Wickham  then  resumed  his  argument.  The  coun- 
sel on  the  other  side  having  proved  every  circumstance 
they  could,  relative  to  the  overt  act,  it  does  not  appear 
on  the  face  of  it,  that  what  occurred  on  the  island 
amouted  to  an  act  of  "  levying  war."  Their  declara- 
tions relative  to  the  quo  animo  are  irrelevant,  and  must 
be  confined  to  the  assemblage  itself.  An  intention  to 
commit  treason  is  not  treason  itself.  In  supporting  the 
proposition  that  the  act  of  levying  war  must  be  proved 
to  have  been  committed  by  the  principal  before  the  ac- 


ARGUMENT    OF    MR.      WICK  HAM.         673 

cessory  can  be  affected  by  it,  I  am  under  the  necessity  of 
speaking  of  the  testimony;  how  can  I  otherwise  do  it? 

Woodbridge  saw  no  improper  act,  no  hostility.  Being 
asked  what  passed  between  him  and  Tyler,  he  answered 
that  Tyler  declared  that  he  would  not  oppose  the  consti- 
tuted authorities,  but  that  if  attacked  by  a  mob  he  would 
not  yield  to  it.  He  had  a  right,  and  every  man  has  a  right 
to  resist  unlawful  aggression.  In  common  with  every 
other  citizen,  he  had  a  right  to  stand  or  fall  by  the  laws 
of  his  country.  As  there  were  no  acts,  his  intentions 
can  only  be  judged  by  his  words.  None  can  discern 
what  designs  a  man  has  in  his  bosom. 

Mr.  Dana  agrees  perfectly  with  Mr.  Woodbridge.  He 
passed  over  that  night  in  his  own  boat  to  the  island  ;  he 
saw  nothing  hostile  or  improper.  Though  the  people 
were  in  great  haste  to  leave  the  island,  and  though  most 
of  them  were  strangers  to  him,  yet  they  manifested  no 
alarm  when  he  entered  the  hall  where  they  were. 

Mr.  Belknap  saw  precisely  the  same  things,  and  states 
the  same  facts  as  Woodbridge  and  Dana.  Yet  during 
all  this  time,  we  are  told  that  a  most  bloody  war  raged 
on  the  island. 

But  Mr.  Poole  was  employed  by  the  governor  of  Ohio 
to  apprehend  Blannerhassett.  But  even  his  evidence 
proves  nothing  like  hostility.  He  thinks  that  some  ot 
the  men  had  guns.  He  heard  expressions  about  calling 
for  a  boat ;  that  when  a  boat  was  called  for  from  the 
Ohio  side,  the  answer  was,  what  boat  ?  and  if  the  reply 
were,  "  I's  boat,"  that  a  boat  would  be  immediately  sent 
off;  that  otherwise  it  would  not.  He  thinks  the  word 
was  "  I's  boat,"  or  something  like  it,  and  that  it  was  a 
watchword  or  countersign.  He  was  half  a  mile  from 
them,  and  it  was  a  dark  night.  He  therefore  might  be 
deceived  in  his  vision  or  hearing.  Tyler's  boats  were 
there.  It  might  be  a  mere  private  signal  among  them- 
selves, which  might  have  been  necessary  to  prevent  mis- 
takes, as  they  were  using  great  dispatch  to  leave  the  is- 
land, in  order  to  avoid  the  attack  of  a  mob. 

But  they  have  one  more  witness,  Jacob  Allbright.     It 

i.s  impossible  that  this    man's   testimony   can    be   true. 

But  the  testimony  of  one  witness,  however  correct,  is  not 

.sufficient  to  establish  the  overt  act.     They  must  be  two 

i.— 43 


674  TRIAL     OF    AARON    BURR. 

witnesses  for  that  purpose.  But  his  evidence  is  contra- 
dictory and  incredible.  He  proves  one  act  of  hostility 
against  General  Tupper,  whom  they  did  not  chose  to  ex- 
amine, though  attending  here  to  give  his  evidence.  They 
would  have  examined  him,  if  they  had  believed  that  he 
would  have  confirmed  Allbright's  evidence.  Their  not 
doing  it,  proves  that  they  thought  he  would  have  contra- 
dicted Allbright.  He  says  that  Tupper  laid  his  hand  on 
Biannerhassett,  in  the  name  of  the  commonwealth,  and 
that  immediately  seven  or  eight  muskets  were  pointed  at 
him.  Yet  no  warrant  or  authority  was  shown  by  him  ; 
and  that  he  had  no  such  authority  must  be  presumed,  as 
he'was  from  Ohio.  For  against  what  state  was  the  trea- 
son committed  ?  It  was  treason  against  Virginia,  if  it 
existed  at  all.  Biannerhassett  had  a  right  to  resist,  if 
Tupper  had  no  warrant ;  and  this  evidence  of  his  arrest- 
ing a  man  is  without  the  production  of  any  authority 
whatever  ;  and  yet  this  is  called  resistance  to  law.  But 
even  if  he  had  a  warrant,  and  had  been  opposed  in  at- 
tempting to  serve  it,  it  would  not  have  been  treason  ;  re- 
sistance to  process  is  not  treason,  though  a  great  of- 
fense. 

But  he  had  sworn  before  that  those  who  levelled  their 
guns  at  Tupper  were  not  in  earnest ;  and  he  now  admits 
that  he  does  not  know  that  they  were  in  earnest ;  as 
"  there  was  no  quarrel  among  them,  and  no  firing  after- 
wards." 

He  mentions  another  circumstance,  which,  connected 
with  the  rest  of  his  evidence,  is  equally  incredible  ;  that 
he  saw  at  different  times  a  number  of  guns  equal  to  the 
whole  number  of  men.  He  acknowledges  that  he  did 
not  see  the  men  all  with  arms  at  once,  and  that  he  did 
not  know  the  men  who  had  guns,  nor  could  he  tell  the 
number  of  guns  ;  how  then  could  this  man  venture  on  his 
oath  to  say  that  he  had  not  seen  the  same  arms  at  dif- 
ferent times,  in  the  hands  of  different  persons?  It  is 
obvious,  from  his  own  statement,  that  this  might  have 
been  the  case,  and  therefore  no  confidence  ought  to  be 
put  in  what  he  says.  If  this  be  an  overt  act,  anything 
that  any  government  chooses  to  consider  as  such  may 
be  an  overt  act. 

But  the  counsel  on  the  other  side  seems  to  think  that 


ARGUMENT    OF    MR.      WICK  HAM.         675 

the  doctrine  of  treason  may  be  extended,  because  no  dan- 
ger can  be  apprehended  from  it  in  this  free  country. 
This  argument  may  be  very  sound,  if  compared  with  his 
other  argument,  that  a  majority  of  the  people  are  always 
right. 

In  every  free  country  there  is  more  occasion  for  guard- 
ing against  factions,  than  in  a  despotism.  It  is  an  evil  in 
the  very  nature  of  free  governments,  as  everything  good 
in  human  institutions  has  its  attendant  evil.  While  it  is 
the  effect  of  political  freedom,  it  has  ever  been  the  cause 
of  its  extinction.  We  ought  to  profit  by  the  experience 
of  other  nations,  and  repress  that  intolerance  and  party 
spirit,  which  progressively  but  certainly  lead  to  despotism ; 
in  producing  which,  the  most  dangerous  and  successful 
engine  has  always  been  the  doctrine  of  constructive  trea- 
son. In  a  despotism  there  are  no  factions  or  civil  com- 
motions. There  are  no  factions  in  the  camp  or  army  of 
Bonaparte.  But  in  this,  as  well  as  in  every  other  free 
country,  parties  struggle  for  power  ;  the  popular  endea- 
voring to  crush  the  unpopular  party.  Hence  the  danger 
of  departing  from  correct  principles,  which  in  such  a 
struggle  are  too  often  disregarded.  I  have  now  gone 
through  every  point  which  I  meant  to  submit  to  the 
consideration  of  the  court.  The  importance  of  the 
question  is  very  great,  not  only  as  it  concerns  my  client, 
but  every  man  in  this  country.  I  will  only  observe  to 
the  counsel,  that,  as  I  have  endeavored  to  support  they 
must  oppose  my  arguments,  on  abstract  principles,  which 
must  be  tested  by  reason  and  truth.  These  principles 
must  be  just  and  true  at  all  times,  and  in  all  places,  with- 
out reference  to  particular  persons  or  circumstances,  and 
are  intimately  connected  with  the  public  liberty  and 
happiness.  If  the  principles  for  which  I  have  conten- 
ded be  correct,  this  prosecution  can  not  succeed  ;  it 
appears  to  my  judgment,  that  if  they  be  disregarded,  and 
the  doctrines  supported  by  the  gentlemen  on  the  other 
side  prevail,  these  will  be  the  consequences  : 

First.  If  a  man  can  be  indicted  as  being  present,  for 
overt  acts  committed  by  others,  when  he  was  absent  in 
a  different  state  and  district,  the  constitution  of  the 
United  States,  which  was  so  ably  and  carefully  drawn  up 
in  order  to  secure  and  perpetuate  the  freedom  of  the 


6-6  TRIAL     OF     AARON    BURR. 

people  of  this  country,  will  be  a  dead  letter.  A  citizen 
may  be  seized  by  military  force,  dragged  from  one  end 
of  the  continent  to  the  other,  tried  far  from  his  family 
and  friends,  where  he  is  a  stranger,  at  a  place  where  he 
never  was,' and  among  people  whom  he  never  saw;  nay 
more, 

Secondly.  He  is  to  be  tried  without  any  notice  in  the 
indictment  of  the  real  nature  of  the  charge  against  him, 
or  where  the  war  was  which  he  is  accused  of  levying. 
The  indictment  against  him  states  that  he  did  the  act 
himself,  when  in  truth  he  was  hundreds  of  miles  distant 
from  the  scene  of  action,  and  the  act  charged  against  him 
was  done  by  others. 

Thirdly.  The  doctrine  of  the  cruel  Jefferies  is  to  be 
applied  against  him.  He  is  to  be  tried  for  an  act  done 
by  another,  without  producing  a  record  of  the  convic- 
tion of  that  other,  for  whose  alleged  guilt  he  is  to  suffer. 

Fourthly.  The  law  of  treason,  and  the  rules  concern- 
ing it,  as  heretofore  universally  considered,  are  totally 
misunderstood.  A  new  definition  of  treason  is  adopted. 
The  levying  of  war  may  be  secret,  without  arms,  without 
force,  without  any  overt  act. 

All  these  arguments  will  apply  not  to  this  case  only, 
but  to  every  case  that  may  happen  in  any  part  of  the 
United  States.  These  will  be  the  certain  consequences 
of  the  doctrines  contended  for  by  the  gentlemen  on  the 
other  side,  if  sanctioned  by  this  court.  Will  they  seri- 
ously contend  for  doctrines  that  will  expose  all  the 
people  of  this  country  more  to  the  dangers  of  construc- 
tive treason,  to  greater  oppression  and  hardships,  than 
the  people  of  any  other  country  have  ever  been  subjected 
to  ?  Certainly  they  will  not.  The  records  of  this  trial 
will  be  a  monument  of  an  attempt  to  establish  principles 
that  must  infallibly  introduce  slavery.  The  attempt  can 
not  succeed.  But  while  I  thus  speak  of  the  principles 
themselves,  God  forbid  that  I  should  make  the  smallest 
reference  to  the  conduct  of  the  government,  or  the  mo- 
tives of  the  gentlemen  on  the  other  side.  1  disclaim  all 
personal  allusions,  which  must  be  without  reference  to 
the  merits  at  a)l  times,  and  frequently  tend  to  substitute 
invective  for  argument.  I  believe  the  government  will 
disclaim  all  agency  in  the  business,  and  that  if  they  wish 


ARGUMENT    OF    MR.      WICKHAM         677 

the  accused  to  be  convicted,  still  they  only  wish  him  to 
be  convicted  according  to  law. 

Will  gentlemen  advance  doctrines  which  the  govern- 
ment will  disclaim  ?  If,  indeed,  it  were  possible  that 
they  wished  to  conduct  the  prosecution  on  principles 
that  would  destroy  the  liberties  of  their  country,  those 
which  they  have  advocated  would  certainly  produce  that 
dreadful  effect ;  for  it  is  obvious  they  have  a  direct  ten- 
dency to  root  out  and  destroy  every  principle  of  free- 
dom ;  but  I  trust  they  will  never  be  sanctioned  in  this 
country. 


I  IS 


UNIVERSITY  OF  CALIFORNIA  LIBRARY 

Los  Angeles 

This  book  is  DUE  on  the  last  date  stamped  below. 


&     APR  21 197'  L. . IF"  m& 


rw 

2  9  1984 


'D  URL  CIRC 


2002 


JW*5 


o«$ 


Form  L9-Series  4939 


993 


:-UNIVERS//) 


LIBRARYO/c 


1 

ULJ 


3  115J3  0093 11  7™1''''''' 

v  ^»  o  V/*fU 


>>i 

<&1BNV-S 


<$U!BRAI 

£? 


